Case NYS/1:21-cv-02101 Document 7 Filed 04/06/21 Page 1 of 6
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`BEFORE THE UNITED STATES
`JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
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`IN RE: BABY FOOD MARKETING,
`SALES PRACTICES AND PRODUCTION
`LIABILITY LITIGATION
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`MDL No. 2997
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`KELLY PLAINTIFFS’ RESPONSE IN PARTIAL SUPPORT OF
`ALBANO PLAINTIFFS’ MOTION FOR TRANSFER OF ACTIONS TO
`THE EASTERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C. § 1407
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`Pursuant to Rule 6.1(c) of the Rules of Procedure for the United States Judicial Panel on
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`Multidistrict Litigation, Plaintiffs Andrea Kelly and Cole Millican (“Kelly Plaintiffs”) respectfully
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`submit their response in partial support of the motion for transfer of actions to the Eastern District
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`of New York. The Kelly Plaintiffs agree that the Related Actions should be transferred and
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`consolidated pursuant to 28 U.S.C. § 1407(a), but submit that the Eastern District of New York is
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`not the most appropriate transferee forum. The Kelly Plaintiffs respectfully submit that the Related
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`Actions, as well as all tag-along actions, should be transferred to Judge Anuraag Singhal in the
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`Fort Lauderdale division of the Southern District of Florida. As detailed below, the factors the
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`Panel considers when determining to transfer and consolidate related actions strongly support the
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`Southern District of Florida as the transferee forum.
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`I. LEGAL ARGUMENT
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`A. Standard of Review
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`Under 28 U.S.C. § 1407(a), the Panel has discretion to transfer and consolidate or
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`coordinate similar actions pending in different districts to maximize the convenience of the parties
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`and witnesses and promote the just and efficient conduct of the actions. See also MANUAL FOR
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`COMPLEX LITIGATION, FOURTH, § 20.131, p. 220. Centralization is appropriate when common
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`questions of fact across numerous actions creates the potential for duplicative discovery,
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`inconsistent pretrial rulings, inconvenience to the parties, and an unnecessary exhaust of judicial
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`resources. In re Enfamil Lipil Mktg. & Sales Practices Litig., 764 F. Supp. 2d 1356, 1357 (J.P.M.L.
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`2011) (selecting the Southern District of Florida as appropriate transferee forum for actions
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`involving “marketing and advertising” of “representations concerning the presence and/or efficacy
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`of two nutrients found in breast milk that are known to promote brain and eye development in
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`infants”); In re Erie COVID-19 Bus. Interruption Prot. Ins. Litig., MDL 2969, 2020 WL 7384529,
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`at *3 (J.P.M.L. Dec. 15, 2020). “Section 1407 does not require a complete identity or even a
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`majority of common factual or legal issues as a prerequisite to transfer.” In re Gadolinium Contrast
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`Dyes Prods. Liab. Litig., 536 F. Supp. 2d 1380, 1382 (J.P.M.L. 2008). Centralization has the
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`salutary effect of placing all related actions before a single judge who can formulate a pretrial
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`technique that “(1) allows discovery with respect to any non-common issues to proceed
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`concurrently with discovery on common issues, and (2) ensures that pretrial proceedings will be
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`conducted in a manner leading to the just and expeditious resolution of all actions to the overall
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`benefit of the parties.” Ibid.; see also In re Jan. 2021 Short Squeeze Trading Litig., MDL 2989,
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`2021 WL 1220775, at *1 (J.P.M.L. Apr. 1, 2021).
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`B. The Southern District of Florida is the Most Appropriate Transferee Forum
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`Centralization of all Related Actions is appropriate as all cases share common factual
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`questions, overlapping legal issues, and are in the procedural infancy stages of litigation—all of
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`the Related Actions were commenced within the last two months with the first being filed on
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`February 5, 2021. Moreover, centralization will prevent the massive proliferation of effort
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`inherent in conducting discovery on common issues in different courts. As such, there are no
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`practical hindrances to expedient coordination and the implementation of uniform pretrial
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`procedures and scheduling in the Southern District of Florida.
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`The Southern District of Florida offers a convenient location for pretrial proceedings in the
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`Related Actions and has a strong nexus to the litigation. Florida has the fourth-highest birth rate
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`in the United States with 220,002 births.1 The U.S. Census Bureau estimates that more children
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`under the age of 5 reside in Florida (1,138,320 children) than in New York (1,128,306 children)
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`and New Jersey (515,167 children).2 Several of the actions involve claims brought by residents of
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`the State of Florida or consumers seeking to enforce Florida law.3 Thus, it is highly probable that
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`additional tag-along actions will be filed in the Southern District of Florida as it is the home to
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`significantly more putative class members.
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`Fort Lauderdale is an accessible, metropolitan area with easy access to several international
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`airports, to wit: the Fort Lauderdale International Airport, which is located 4.6 miles from the
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`Southern District of Florida (Fort Lauderdale) Courthouse; the Miami International Airport, which
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`is located 29.3 miles from the Southern District of Florida (Fort Lauderdale) Courthouse; and the
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`West Palm Beach International Airport, which is located 44.3 miles from the Southern District of
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`Florida (Fort Lauderdale) Courthouse. See In re Trasylol Prods. Liab. Litig., 545 F. Supp. 2d 1357,
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`1358 (J.P.M.L. 2008) (“The Southern District of Florida, where a constituent action is pending,
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`currently has a relatively low number of MDL dockets and offers an accessible metropolitan
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`location.”); In re Monat Hair Care Products Mktg., Sales Practices & Prods. Liab. Litig., 325 F.
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`1 See Centers for Disease Control and Prevent, National Vital Statistics Reports, Vol. 70, No. 2,
`p. 21 — State and Territorial Data
`for 2019
`(Mar. 23, 2021), available at:
`https://www.cdc.gov/nchs/data/nvsr/nvsr70/nvsr70-02-508.pdf.
`2 See U.S. Census Bureau, Quick Facts on Population Estimates in Florida as of July 1, 2019,
`available at: https://www.census.gov/quickfacts/FL.
`3 See, e.g., Garces v. Gerber Products Co. et al., Case No. 1:21-cv-719 (N.D. Ill.); Wallace et al.
`v. Gerber Products Co. et al., Case No. 2:21-cv-2531 (D.N.J.).
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`Supp. 3d 1364, 1365 (J.P.M.L. 2018) (the Southern District of Florida “offers a readily accessible
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`and convenient transferee forum”). There can be no dispute that the Southern District of Florida
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`offers a more convenient and accessible forum than the Eastern District of New York.
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`The experience of Judge Singhal and the resources and capacity of the Southern District of
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`Florida also weigh in its favor. Judge Singhal is already presiding over the first case commenced
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`and pending in the district, Kelly et al. v. Gerber Products Co., Case No. 0:21-cv-60602-AHS, and
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`is familiar with the claims raised in these actions. See In re Trasylol Prods. Liab. Litig., 545 F.
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`Supp. 2d 1357, 1358 (J.P.M.L. 2008) (considering the fact that an action is already pending in the
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`transferee forum); In re Imagitas, Inc., 486 F. Supp. 2d 1371, 1372 (J.P.M.L. 2007) (selecting
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`transfer to a “jurist already familiar with the contours of the litigation”). The judges in the Southern
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`District of Florida are also well-versed in products liability and deceptive practices litigation.4
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`This Panel often considers the experience of the trial judge when selecting a forum to
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`transfer pretrial proceedings in a multidistrict litigation. See, e.g., In re Vioxx Prods. Liab. Litig.,
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`360 F. Supp. 2d 1352, 1354 (J.P.M.L. 2005) (“Given the geographic dispersal of constituent
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`actions and potential tag-along actions, no district stands out as the geographic focal point for this
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`nationwide docket,” so the Panel “searched for a transferee judge with the time and experience to
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`steer this complex litigation on a prudent course”); In re Meridia Prods. Liab. Litig., 217 F. Supp.
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`2d 1377, 1378 (J.P.M.L. 2002) (similar); In re Diet Drugs (Phentermine, Fenfluramine,
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`Dexfenfluramine) Prods. Liab. Litig., 990 F. Supp. 834, 836 (J.P.M.L. 1998) (similar). Judge
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`Singhal is an experienced trial judge who will steer the course of these cases through pretrial
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`4 See, e.g., Nunez v. Coloplast Corp., 461 F. Supp. 3d 1260 (S.D. Fla. 2020) (Judge Singhal
`presiding) (concerning pelvic mesh-sling implant multidistrict litigation action); Epstein v. Gilead
`Scis., Inc., 441 F. Supp. 3d 1277 (S.D. Fla. 2020); Nelson v. Mead Johnson Nutrition Co., 270
`F.R.D. 689 (S.D. Fla. 2010) (involving marketing of baby foods in violation of consumer-related
`statutes).
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`proceedings prudently and efficiently. Judge Singhal is a highly respected, persistent, and able
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`jurist who has presided over numerous complex class actions and is more than adequately equipped
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`to handle complex litigation including the complexities that could arise in a multidistrict litigation.
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`Moreover, the Southern District of Florida has the resources and capacity to handle this
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`case. See In re Jan. 2021 Short Squeeze Trading Litig., MDL 2989, 2021 WL 1220775, at *3
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`(J.P.M.L. Apr. 1, 2021) (the Southern District of Florida has “the resources and the capacity to
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`efficiently handle what may be a large and complex litigation”); In re Monat Hair Care Products
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`Mktg., Sales Practices & Prods. Liab. Litig., 325 F. Supp. 3d 1364, 1365 (J.P.M.L. 2018) (the
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`Southern District of Florida “offers a readily accessible and convenient transferee forum”); In re
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`Trasylol Prods. Liab. Litig., 545 F. Supp. 2d 1357, 1358 (J.P.M.L. 2008) (considering the
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`“relatively low number of MDL dockets” in the Southern District of Florida). Federal court
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`statistics show that the Southern District of Florida has fewer pending civil cases per judge (342
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`cases) than judges in the Eastern District of New York (809 cases), the District of New Jersey
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`(2,742 cases), and the District of Delaware (608 cases).5 The Southern District of Florida is also
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`much more efficient—it takes significantly longer for a civil case to proceed from filing to trial in
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`the Eastern District of New York (41.6 months), the District of New Jersey (37.1 months), and the
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`District of Delaware (28.4 months) than in the Southern District of Florida (15.8 months). Id.
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`Accordingly, Kelly Plaintiffs respectfully submit that these actions should be consolidated
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`for pretrial proceedings and transferred to Judge Singhal in the Southern District of Florida.
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`Dated: April 6, 2021.
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`Respectfully submitted,
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`/s/ Cody L. Frank
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`5 See U.S. District Courts - Federal Court Management Statistics (Sept. 30, 2020), available at:
`https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2020.pdf.
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`Case NYS/1:21-cv-02101 Document 7 Filed 04/06/21 Page 6 of 6
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`Cody L. Frank
`FRANK LAW FIRM, P.A.
`515 East Las Olas Boulevard, Ste. 120
`Fort Lauderdale, Florida 33301
`Telephone: (954) 787-6525
`Facsimile: (954) 787-6524
`Email: cody@codyfrank.com
`Email: eservice@codyfrank.com
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`Counsel for Plaintiffs
`Andrea Kelly and Cole Millican
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