Case 2:21-cv-00678-JS-AYS Document 37 Filed 03/15/21 Page 1 of 5 PageID #: 155
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`NICOLE STEWART, ELIZABETH
`AGRAMONTE, and SUMMER APICELLA, on
`behalf of themselves and all others similarly situated,
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`Plaintiffs,
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`v.
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`HAIN CELESTIAL GROUP, INC.,
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`Defendant.
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`Case No. 2:21-cv-00678-JYS-AYS
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`ECF Case
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`NON-PARTY NURTURE INC’S OPPOSITION TO MOTION TO CONSOLIDATE
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`Non-party Nurture Inc., appearing specially and solely for the purpose of this response,
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`submits this opposition to the Motion to Consolidate. Dkt. No. 19.1
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`I.
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`PRELIMINARY STATEMENT
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`By their Motion to Consolidate, the Plaintiffs in this action (the “Stewart Plaintiffs”) seek
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`to consolidate all cases filed in this District against Hain Celestial Group, Inc., which allege that
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`certain of Hain’s baby food products contain dangerous levels of toxic heavy metals. Three of
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`these actions, however, also include claims against other defendants, including Nurture, Inc.,
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`concerning their baby food products. Nurture respectfully submits that actions in which Nurture is
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`a defendant are inappropriate for consolidation with the cases in which Hain is a defendant because
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`of idiosyncrasies between the defendants and their products that make these cases inappropriate
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`1Nurture is not a named party to this action, but is named in three other actions which the Stewart
`Plaintiffs seek to consolidate: Walls v. Beech-Nut Nutrition Co., et al., No. 21-cv-00870 (E.D.N.Y.
`Feb. 17, 2021); Albano v. Hain Celestial Grp., Inc., et al., No. 21-cv-01118 (E.D.N.Y. Mar. 2,
`2021); and Lawrence v. Hain Celestial Grp., Inc., et al., No. 21-cv-01287 (E.D.N.Y. Mar. 10,
`2021). Nurture has not yet been served in Lawrence and its responses to the Complaints in Walls
`and Albano are not yet due, therefore Nurture specially appears solely to file this opposition to the
`Motion out of an abundance of caution so as not to waive its ability to object to the Motion. Nurture
`does so without waiving any rights or defenses that Nurture has or may assert in any action pending
`against it.
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`Case 2:21-cv-00678-JS-AYS Document 37 Filed 03/15/21 Page 2 of 5 PageID #: 156
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`for consolidation. At the proper time, Nurture will move to be severed from these actions, and
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`therefore opposes consolidation of the cases to which it is a party.
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`II.
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`STATEMENT OF FACTS
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`On February 4, 2021, the United States House of Representatives Subcommittee on
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`Economic and Consumer Policy, Committee on Oversight and Reform, issued a report (the
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`“Report”) alleging that certain heavy metals are present in commercial baby food products at
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`potentially harmful levels. Since the issuance of the Report, approximately 60 class actions have
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`been filed nationwide against the seven makers of baby food mentioned in the Report, including
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`15 cases against Nurture. Nurture disputes the health-risk-related statements in the Report and
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`denies the allegations against Nurture in this and all suits in which Nurture is named. On February
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`28, 2021, the Stewart Plaintiffs filed the Motion to Consolidate, seeking to consolidate all cases
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`filed in this District against Hain concerning its baby foods. See Dkt. No. 19. The Motion was
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`subsequently been filed in or purports to apply to all cases pending in this District in which Hain
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`is a defendant, which as of the filing of this opposition was 15 cases. Only 3 of these 15 actions
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`include claims against defendants besides Hain. Nurture is a named party to all 3, but has only
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`recently been served in 2 of those actions.
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`III. ARGUMENT
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`Federal Rule of Civil Procedure 42 provides that, when “actions before the court involve a
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`common question of law or fact, the court may: (1) join for hearing or trial any or all matters at
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`issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary
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`cost or delay.” Fed. R. Civ. P. 42(a). Under Fed. R. Civ. P. 42, the burden at all times remains with
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`the plaintiff to demonstrate that consolidation is appropriate. Weiss v. Nat’l Westminster Bank
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`PLC, No. 05-cv-4622-DLI-RML, 2017 WL 10058916, at *3 (E.D.N.Y. Mar. 31, 2017). Even when
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`actions involve a common question of law or fact, the trial court has broad discretion to determine
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`Case 2:21-cv-00678-JS-AYS Document 37 Filed 03/15/21 Page 3 of 5 PageID #: 157
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`whether consolidation is appropriate by balancing the economy gained from consolidation with
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`the prejudice to the parties. Gristede’s Foods, Inc. v. Poospatuck (Unkechauge) Nation, No. 06-
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`cv-1260-KAM, 2009 WL 3644159, at *3 (E.D.N.Y. Oct. 27, 2009).
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`The Stewart Plaintiffs fail to show that consolidation of the claims against multiple
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`defendants is appropriate because, while the claims against the various defendants may
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`superficially appear similar, many varied individual issues predominate given that the respective
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`defendants are competitors situated quite differently with different accused products. While all
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`defendants indeed manufacture baby foods, their products and their product marketing are plainly
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`different in important ways. These differences mean the facts and required proof vary significantly
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`between each defendant. Discovery will also differ between defendants as the fact witnesses and
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`physical evidence relevant to the plaintiffs’ claims against each defendant are distinct and will not
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`overlap. And because defendants are competitors, the consolidation of cases against them increases
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`concerns over the disclosure of proprietary and trade secret information.
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`Notably, the Motion to Consolidate only discusses the actions as they concern Hain. See,
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`e.g., Dkt. No. 19 at p. 3. Specifically, the Stewart Plaintiffs discuss that all of the actions concern
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`whether Hain is liable to consumers for alleged misrepresentations and omissions regarding Hain’s
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`baby food products. Id. There is no discussion of commonality of claims against other defendants.
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`For these reasons, consolidation of claims against Nurture is not appropriate. At the proper
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`time, Nurture will seek to sever claims against it from those against any other defendant. Jem
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`Accessories, Inc. v. JVCKENWOOD USA Corp., 2021 WL 706646, at *4 (S.D.N.Y. Feb. 22, 2021)
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`(court may sever claims based on: (1) judicial economy; (2) prejudice to the parties; and (3)
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`whether the claims involve different witnesses and evidence).
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`IV. CONCLUSION
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`Based on the foregoing, Nurture respectfully requests that the Stewart Plaintiffs’ Motion
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`to Consolidate be denied with respect to any claims against Nurture.
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`Dated: March 15, 2021
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`DLA PIPER LLP (US)
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`By: /s/ Negin Hadaghian
`Negin Hadaghian
`1251 Avenue of the Americas, 27th Floor
`New York, NY 10020-1104
`Telephone: 212.335.4500
`Facsimile: 212.335.4501
`Email: negin.hadaghian@us.dlapiper.com
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`Angela C Agrusa (pro hac vice pending)
`2000 Avenue of the Stars
`Suite 400 North Tower
`Los Angeles, California 90067-4704
`Telephone: 310.595.3000
`Facsimile: 310.595.3300
`Email:
`angela.agrusa@us.dlapiper.com
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`Appearing Specially on behalf of Non-Party
`Nurture, Inc.
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on March 15, 2021, the foregoing document was filed
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`electronically using CM/ECF and is being served this day on all counsel of record via transmission
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`of Notice of Electronic Filing generated by CM/ECF.
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`Dated: March 15, 2021
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`/s/ Negin Hadaghian
` Negin Hadaghian
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