Grano v. Sodexo Mgmt., Inc.

VINCENT GRANO, an individual, Plaintiff, v. SODEXO MANAGEMENT, INC., a New York Corporation;and CARGILL MEAT SOLUTIONS CORP., a Delaware Corporation, Defendants.AND ALL RELATED CASES

Case No.: 18-CV-1818 TWR (BLM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

December 3, 2020

ORDER (1) GRANTING THE AMENDING PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINTS, (2) DENYING AS MOOT DEFENDANT US FOODS' MOTIONS TO DISMISS, AND (3) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO STRIKE

(ECF Nos. 184, 187, 191, 194-200, 238)

Presently before the Court are several fully briefed motions in these eight consolidated actions:¹ Plaintiffs Vincent Grano, Tristan Abbott, Bailey Anderson, MichaelBaker, Hunter Browning, Chase Evers, Conner Lader, and Frank Miller's Motion to Strike Defendant Sodexo Management, Inc.'s Affirmative Defenses ("Mot. to Strike," ECF No. 187); Amending Plaintiffs Abbott, Anderson, Baker, Browning, Evers, Lader, and Miller's Motion for Leave Under FRCP 15(a)(2) to File Amended Complaints ("Mot. to Amend," ECF No. 191); and Defendant US Foods' Motions to Dismiss Plaintiffs Miller's, Evers', Lader's, Browning's, Anderson's, Baker's, and Abbott's Second Amended Complaints (ECF Nos. 194-200, respectively, and the "Motions to Dismiss," collectively). The Court held a hearing on November 20, 2020. (See ECF No. 247.) Having carefully considered Sodexo's Answer to Plaintiff Grano's Third Amended Complaint (ECF No. 184 ("Ans.")), the Amending Plaintiffs' Proposed Third Amended Complaints (ECF Nos. 191-3-9), the Parties' arguments, and the law, the Court GRANTS the Amending Plaintiffs' Motion to Amend, DENIES AS MOOT US Foods' Motions to Dismiss, and GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion to Strike, as follows.

BACKGROUND

I. Escherichia Coli

Escherichia coli is a family of bacteria, most members of which do not cause human disease. (ECF No. 191-3 ("Proposed Abbott Compl.") ¶ 43.²) The E. coli O157:H7 (or "STEC") strain, however, can cause bloody diarrhea in humans and has a reputation as a significant health hazard. (Id.)

E. coli O157:H7 is notable for its extremely low infectious dose, with as few as fifty bacteria capable of causing illness in a child. (Id. ¶ 44.) Approximately two to four days (and up to ten days) after ingestion, (id. ¶ 46), the bacteria attach to the inside surface of the large intestine, where they initiate an inflammatory reaction resulting in vomiting, diarrhea that can be bloody, and abdominal cramps. (Id. ¶¶ 45-46.) E. coli infections range from mild to life-threatening. (See id. ¶ 47.)

Although most cases are mild and resolve within about a week without long-term effects, (id.), approximately ten percent of those infected develop a severe, potentially life-threatening complication called hemolytic uremic syndrome ("HUS"). (See id. ¶ 48.) HUS results in the destruction of red blood cells and platelets in the blood, which can result in clots that occlude the filtering units of the kidneys, leading to acute renal failure. (See id. ¶ 48.) Because antibiotics do not aid in combating E. coli infections, therapy is supportive. (See id. ¶ 47.) There is no known therapy to halt the progression of HUS, which has a mortality rate of approximately five percent. (Id. ¶ 49.)

II. October 2017 STEC Outbreak at Camp Pendleton

In October 2017, an outbreak of Shiga toxin-producing E. coli O157:H7 and O26 at United States Marine Corps Base Camp Pendleton (Edson Range) and the Marine Corp Recruit Depot sickened at least 244 Marine Corps recruits, including Plaintiffs. (See Proposed Abbott Compl. ¶¶ 8, 10.) Fifteen of those recruits developed HUS. (Id. ¶ 9.) By November 2017, all eight Plaintiffs to these consolidated actions had been hospitalized. (See ECF No. 202 ("US Foods Opp'n") at 8; see also, e.g., Proposed Abbott Compl. ¶¶ 52-54.)

Investigators from multiple public health agencies, including the Centers for Disease Control ("CDC"), conducted studies into the circumstances of the outbreak. (Proposed Abbott Compl. ¶ 12.) The investigators inspected the recruits' sleep quarters, bathroom facilities, and the cafeterias, (see id.), and interviewed forty-three STEC patients and 135 healthy controls and other personnel. (Id. ¶ 13.)

The CDC issued its report (the "CDC Report") on January 23, 2018.³ (See id. ¶ 15.) The CDC Report revealed a statistically significant association between illness and theconsumption of undercooked beef. (See id. ¶ 13.) Plaintiffs allege that the STEC-contaminated ground beef patties responsible for the outbreak were served to recruits in the cafeteria on October 21, 2017. (See id. ¶ 18.)

Defendant Cargill Meat Solutions Corp. manufactured and produced the patties, (see id.), which were then received, stored, and refrigerated by US Foods prior to distribution to Defendant Sodexo. (See id. ¶ 19.) Sodexo, which is under contract to provide foodservice at all Marine garrisons and mess halls, (see id. ¶¶ 23-25), allegedly prepared undercooked hamburgers and cheeseburgers from the STEC-contaminated ground beef patties on October 21, 2017. (See, e.g., id. ¶ 22.) The recruits began falling ill October 24, 2017. (See id. ¶ 11.)

III. The Healio Article and Plaintiffs' Investigation

The Amending Plaintiffs allege that they did not learn, and could not have learned, about the conclusions of the CDC Report until April 24, 2018, when an article titled "E. coli outbreak in Marine recruits associated with undercooked beef" was published on the website www.healio.com. (Proposed Abbott Compl. ¶¶ 56, 59.) Plaintiff Grano sent a Freedom of Information Act ("FOIA") request to the CDC on July 12, 2018. (See id. ¶ 57.) On October 18, 2028, Plaintiffs' counsel received the CDC Report and other records in response to their FOIA request. (See id.)

IV. Procedural Background

Plaintiff Grano filed the first of these consolidated lawsuits against Sodexo on August 3, 2018. (See generally ECF No. 1.) On May 30, 2019, Sodexo produced invoices from US Foods to Sodexo in response to Plaintiff Grano's requests for production of documents. (See Mot. to Strike at 4.) The Amending Plaintiffs filed their individual actions on October 2, 2019. (See id.)

On February 21, 2020, Sodexo sought leave to file a third-party complaint against US Foods for negligence, (see ECF No. 71), which Plaintiffs originally opposed. (See ECF No. 81.) On March 2, 2020, however, the Amending Plaintiffs sought leave to file amended complaints adding US Foods as a defendant. (See Mot. to Strike at 4.) The HonorableGonzalo P. Curiel granted both motions on May 4, 2020, (see ECF No. 126), and the Amending Plaintiffs filed their First Amended Complaints in their respective actions on May 7, 2020. (See Mot. to Strike at 4.)

US Foods moved to dismiss the claims alleged against it in the First Amended Complaint on June 5, 2020, arguing that the Amending Plaintiffs' claims were time-barred. (See id.) On July 6, 2020, the Amending Plaintiffs moved for leave to file further amended complaints to add requests for punitive damages against Sodexo. (See ECF No. 161.) The following day, the Amending Plaintiffs' counsel informed US Foods' counsel of the Amending Plaintiffs' intent to file a motion for leave to amend their complaints to add allegations responsive to US Foods' June 5, 2020 motions to dismiss. (See Mot. to Strike at 5.)

On August 18, 2020, Judge Curiel granted the Amending Plaintiffs leave to file amended complaints, (see ECF No. 175), and the Amending Plaintiffs filed their operative Second Amended Complaints in their respective actions on August 24, 2020. Sodexo answered Plaintiffs' operative complaints on September 4, 2020, (see, e.g., ECF No. 184), and Plaintiffs filed the instant Motion to Strike several of Sodexo's affirmative defenses on September 14, 2020. (See ECF No. 187.)

After obtaining new counsel, (see ECF Nos. 180-83, 186), US Foods renewed its motions to dismiss in the individual actions on September 8, 2020,⁴ following which the Amending Plaintiffs filed the instant Motion to Amend. (See ECF No. 191.)

MOTION TO AMEND

I. Legal Standard

Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend his or her complaint once as a matter of course within specified time limits. Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's writtenconsent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2).

"Rule 15's policy of favoring amendments to pleadings should be applied with 'extreme liberality,'" United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citing Rosenberg Brothers & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam)), and its application is committed to "the sound discretion of the trial court." Id. (citing PSG Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659, 664 (9th Cir. 1969), cert. denied, 397 U.S. 918 (1970)). The Supreme Court has cautioned that courts generally should grant leave to amend absent a showing of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "Rule 15(a) 'is to be applied with extreme liberality,' and whether to permit amendment is a decision 'entrusted to the sound discretion of the trial court.'" EFG Bank AG, Cayman Branch v. Transam. Life Ins. Co., No. 216CV08104CASGJSX, 2019 WL 5784739, at *3 (C.D. Cal. Nov. 4, 2019) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); Jordan v. Cty. of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982)).

The non-moving party bears the burden of showing why leave to amend should not be granted. Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989).

II. Analysis

"Generally speaking, a cause...