1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LORETTA SCHWEINSBURG, on behalf Case No.: 3:22-cv-00403-RBM-DDL of herself and all others similarly situated, 12 ORDER RE: MOTION TO AMEND Plaintiff, 13 JUDGMENT v. 14 [Doc. 27] GENERAL MILLS, INC.; GENERAL 15 MILLS SALES, INC., 16 Defendants. 17 18 19 20 21 22 Currently pending before the Court is a motion to alter judgment pursuant to Federal 23 Rule of Civil Procedure (“Rule”) 59, filed by Plaintiff Loretta Schweinsburg (“Plaintiff”). 24 (Doc. 27.) Defendants General Mills, Inc. and General Mills Sales, Inc. (“Defendants” or 25 “General Mills”) filed a brief in opposition to Plaintiff’s motion (Doc. 28), and Plaintiff 26 filed a reply (Doc. 29). The Court finds the matter suitable for determination on the papers 27 and without oral argument pursuant to Civil Local Rule 7.1(d)(1). 28 For the reasons discussed below, Plaintiff’s motion is DENIED WITHOUT 1 PREJUDICE. 2 I. BACKGROUND 3 As detailed in the Court’s November 7, 2022 Order (see Doc. 25), Plaintiff filed this 4 putative class action in the Superior Court of California for the County of San Diego on 5 February 23, 2022, challenging Defendants’ use of partially hydrogenated oils (“PHO” or 6 “PHOs”) in its Hamburger Helper products1 and alleging: (i) violations of the unfair and 7 unlawful prongs of California’s Unfair Competition Law (“UCL”); and (ii) breach of the 8 implied warranty of merchantability. (See Compl., Doc. 1-2 ¶¶ 134–52.) Plaintiff sought 9 to represent a class of “[a]ll citizens of California who purchased Hamburger Helper, Tuna 10 Helper, and/or Chicken Helper containing partially hydrogenated oil in California between 11 January 1, 2000 and December 31, 2016.” (Id. ¶ 126.) Defendants removed Plaintiff’s 12 action to this Court on March 28, 2022. (See Doc. 1.) 13 On March 29, 2022, Plaintiff filed a motion to remand, alleging she lacked Article 14 III standing to proceed in federal court. (See Doc. 6 at 6.) Defendants filed a brief in 15 opposition to Plaintiff’s motion to remand, arguing that while Plaintiff “has admitted she 16 has suffered no economic injury and thus fails to state a claim on the merits under either 17 the [UCL], or for breach of the implied warranty of merchantability,” “Schweinsburg has 18 alleged consumption levels of PHOs, and resulting physical harm, sufficient to give rise to 19 Article III standing on an immediate physical injury theory.” (Doc. 18 at 8, 10.) 20 Defendants also filed a motion to dismiss pursuant to Federal Rule of Civil 21 Procedure 12(b)(6). (Doc. 15-1.) Defendants argued Plaintiff’s claims are preempted by 22 federal law, noting “no fewer than nine federal courts have dismissed similar complaints 23 on these grounds, all of which were filed by Plaintiff’s counsel Mr. Greg Weston.” (Id. at 24 7 (emphasis in original).) Defendants further argued Plaintiff’s claims should be dismissed 25

26 27 1 In her Complaint, Plaintiff refers to Defendants’ Hamburger Helper, Tuna Helper, and Chicken Helper products collectively as the “Hamburger Helper” products. (See Compl., 28 1 because: (1) they are barred by the four-year statute of limitations; and (2) she failed to 2 allege economic injury. (Id.) 3 On November 7, 2022, the Court denied Plaintiff’s motion to remand and granted 4 Defendants’ motion to dismiss with prejudice. (See Doc. 25.) The undersigned found 5 Plaintiff’s claims were preempted by federal law and “join[ed] numerous other courts 6 across the Ninth Circuit which have dismissed nearly identical claims on conflict 7 preemption grounds.” (Id. at 4 (collecting cases).) The Court denied Plaintiff’s motion to 8 remand as futile. (Id. at 10–11.) Plaintiff’s instant motion to alter judgment followed on 9 December 5, 2022. (Doc. 27.) 10 II. LEGAL STANDARD 11 While Rule 59(e) permits a district court to reconsider and amend a previous order, 12 “the rule offers an ‘extraordinary remedy, to be used sparingly in the interests of finality 13 and conservation of judicial resources.’” Carroll v. Nakatani,

(9th Cir. 14 2003) (quoting 12 James Wm. Moore et al., Moore’s Federal Practice § 59.30[4] (3d ed. 15 2000)). “[A] motion for reconsideration should not be granted, absent highly unusual 16 circumstances, unless the district court is presented with newly discovered evidence, 17 committed clear error, or if there is an intervening change in the controlling law.” Id. 18 (quoting Kona Enterprises, Inc. v. Estate of Bishop,

, 890 (9th Cir. 2000)). 19 “A Rule 59(e) motion may not be used to raise arguments or present evidence for the first 20 time when they could reasonably have been raised earlier in the litigation.” Kona,

(citation omitted). Whether to grant or deny a motion for reconsideration rests with 22 the sound discretion of the district court. Navajo Nation v. Confederated Tribes & Bands 23 of the Yakama Indian Nation,

(9th Cir. 2003). 24 In this District, motions for reconsideration are also governed by Civil Local Rule 25 7.1(i). That rule provides: 26 Whenever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part, or has been granted 27 conditionally or on terms, and a subsequent motion or application or petition is made 28 for the same relief in whole or in part upon the same or any alleged different state of 1 facts, it will be the continuing duty of each party and attorney seeking such relief to present to the judge to whom any subsequent application is made an affidavit of a 2 party or witness or certified statement of an attorney setting forth the material facts 3 and circumstances surrounding each prior application, including inter alia: (1) when and to what judge the application was made, (2) what ruling or decision or order was 4 made thereon, and (3) what new or different facts and circumstances are claimed to 5 exist which did not exist, or were not shown, upon such prior application.

6 CivLR 7.1(i)(1). 7 III. DISCUSSION 8 Having reviewed the parties’ filings, the Court declines at this time to reach the 9 merits of Plaintiff’s motion. As Defendants note in their opposition (see Doc. 28 at 9), 10 Plaintiff has failed to comply with the procedural requirements of Civil Local Rule 11 7.1(i)(1), which required Plaintiff to file with his motion for reconsideration “an affidavit 12 of a party or witness or certified statement of an attorney setting forth the material facts 13 and circumstances surrounding each prior application.” CivLR 7.1(i)(1). Plaintiff argues 14 in his reply brief that such affidavit was not required because “Plaintiff did not file a motion 15 for reconsideration, but a motion to alter or amend judgment pursuant to [Rule] 59(e).” 16 (Doc. 29 at 9.) 17 The Court rejects Plaintiff’s argument. Indeed, other courts in this District have 18 applied Civil Local Rule 7.1(i) in similar circumstances, including where the party seeks 19 relief under Rule 59(e). See, e.g., Gallagher v. San Diego Unified Port Dist., No. 20 08CV0886 AJB WVG,

, at *2 (S.D. Cal. Sept. 8, 2011) (denying Rule 21 59(e) motion in part due to party’s failure to comply with Civil Local Rule 7.1(i)); Fed. 22 Trade Comm’n v. Neovi, Inc., No. 06-CV-1952 JLS (JMA),

, at *2 (S.D. 23 Cal. May 27, 2016) (same); Raiser v. San Diego Cnty., No. 19-CV-00751-GPC,

4751199, at *1 (S.D. Cal. Oct. 12, 2021) (party’s failure to abide by Civil Local Rule 7.1(i) 25 when filing Rule 59(e) motion “alone could justify denial of Plaintiff’s Motion”); see also 26 Isis Pharms., Inc. v. Santaris Pharma A/S Corp., No. 3:11-CV-2214-GPC-KSC,

2212114, at *2 (S.D. Cal. May 28, 2014) (denying motion for reconsideration in part due 28 | party’s failure to submit an affidavit or certified attorney statement that complies with 2 || Civil Local Rule 7.1(4)); Perea v. Loera, No. 1OCV1565 RBB,

, at *2 3 1(S.D. Cal. Oct. 4, 2012) (same); S.E.C. v. Schooler, No. 3:12-CV-2164-GPC-JMA, 2014 4 || WL 2515128, at *2 (S.D. Cal. June 4, 2014) (failure to comply with Civil Local Rule 7.1(1) 5 a sufficient basis on which to deny Schooler’s Motion for Reconsideration’) (citing 6 || Neovi, Inc.,

, at *2). 7 IV. CONCLUSION 8 For the reasons discussed above, Plaintiffs motion (Doc. 27) is DENIED 9 || WITHOUT PREJUDICE. Plaintiff is ORDERED to file “an affidavit of a party or 10 ||} witness or certified statement of an attorney setting forth the material facts and 11 |}circumstances surrounding each prior application” as contemplated by Civil Local Rule 12 ||7.1(@) on or before May 22, 2023. 13 To the extent Plaintiff files her affidavit or certified statement on or before May 22, 14 2023, the parties need not refile their briefing on Plaintiffs motion to alter judgment 15 |}/pursuant to Rule 59. Defendants may, but are not required to, file a short response to 16 || Plaintiff's affidavit or certified statement on or before June 12, 2023. 17 IT IS SO ORDERED. 18 || DATE: May 1, 2023 \ _Frt Barruds, Mntaryy 0 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28