# Drake v. Procter & Gamble Company

> District Court, S.D. Illinois · October 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10154254

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** October 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL DRAKE, )
Plaintiff,
vs. Case No. 21-cv-279-DWD
THE PROCTER & GAMBLE
COMPANY, )
Defendant.
MEMORANDUM AND ORDER
DUGAN, District Judge:
This matter is before the Court on the Motion to Stay, Transfer, or Dismiss filed by
Defendant, The Procter & Gamble Company (“P&G”) (Doc. 34). This case is one of four
duplicative class actions filed against P&G currently pending in federal courts in New
York.! Defendant asks the Court to transfer, dismiss, or stay all proceedings and
deadlines in this action pending resolution of the previously filed, substantially-related
class action currently pending in the Southern District of New York, ie., Nieves v. The
Procter & Gamble Co., No. 7:21-cv-186-CS (“the SDNY Action.”). Plaintiff Michael Drake

opposes the motion, arguing that a stay or dismissal is unwarranted and would prejudice
Plaintiff and the Illinois plaintiffs, and that venue in the Southern District of New York is
not appropriate or otherwise warranted by convenience or the interest of justice.

LA fifth punitive class action was filed against Defendant in the Eastern District of Missouri, i.e. Helterbrand
v. P&G, No. 4:21-cv-855. However, by order dated September 22, 2021, Helterbrand was remanded to the
Circuit Court of St. Louis County, Missouri (Doc. 45-3). Court documents are public records of which the
Court can take judicial notice. See Spiegel v. Kim, 952 F.3d 844, 847 (7th Cir. 2020).

Background
Plaintiff is an Illinois resident who alleges that he purchased Defendant's “Crest
Gum & Enamel Repair” toothpaste in Illinois, and that the toothpaste contained false and
misleading representations (Doc. 1-1). Defendant is a resident of Ohio (Doc. 1). Plaintiff
filed his complaint in the Third Judicial Circuit Madison County, Illinois on February 1,
2021 (Doc. 1-1). Defendant removed the action to this Court on March 12, 2021 asserting
diversity jurisdiction under 28 U.S.C. § 1332(d)(2)(A) (Doc. 1). In his complaint, Plaintiff
alleges that Defendant made false and misleading representations concerning two of its
products: Crest Gum & Enamel Repair (both, the “intensive clean” and “advanced
whitening” varieties) and its Oral-B Gum & Enamel Repair toothpaste.? Plaintiff brings
three counts against Defendant for violations of the Illinois Consumer Fraud and
Deceptive Business Practice Act, 815 ILCS § 505/1, et seq., and for unjust enrichment (Doc.
1-1). Plaintiff seeks to certify a class consisting of “[a]ll persons in the state of Illinois who
purchased one or more of the Class Products in Illinois during the Class Period.” Plaintiff
seeks an award of compensatory damages, injunctive relief, punitive damages, and
attorney’s fees.
On January 9, 2021, and one-month prior to Plaintiff initiating this lawsuit,
plaintiff Carmen Nieves filed a punitive class action against Defendant in the Southern
District of New York. See Nieves v. The Procter & Gamble Co., No. 7:21-CV-00186 (S.D.N.Y.).

2Defendant filed a Motion to Dismiss Plaintiffs Complaint (Doc. 24), arguing in part, that Defendant has
never sold its Oral-B Gum & Enamel Repair toothpaste in Illinois or the United States (Doc. 24, at p. 17).
This motion to dismiss is still pending, and the Court will address the motion as appropriate after
resolution of this Motion to Stay, Transfer, or Dismiss.

Similar punitive class actions were later filed against Defendant on April 14, 2021 in the
Northern District of California, see Lichtinger v. The Procter & Gamble Co., No. 3:21-CV-
02680-MMC (N.D. Cal.), and on May 4, 2021 in the Middle District of Florida, see Keirsted

v. The Procter & Gamble Co., No. 6:21-CV-00778-RBD-GJK (M.D. Fla.). Lichtinger and
Keirsted voluntarily transferred their cases to the Southern District of New York in order
to consolidate their cases with the Nieves case.
On September 2, 2021, the consolidated plaintiffs filed a master class action
complaint in the SDNY Action (Doc. 45-2). The consolidated complaint also asserts that
Defendant's “Crest Gum & Enamel Repair” toothpaste contained false and misleading
representations (Doc. 35-1). The consolidated plaintiffs bring counts for violations of
Florida, New York, and California consumer protection statutes, in addition to breaches
of express warranty, implied warranty of merchantability, and the Magnusom Moss
Warranty Act, negligent misrepresentation, fraud, and unjust enrichment (Id.). The
consolidated plaintiffs seek to certify three subclasses: New York, Florida, and California,
with class members consisting of “all persons in New York, Florida, and California who,
from the beginning of the applicable limitations period through the date of trial,
purchased one or more of Defendant’s Products for personal use and not for resale (Id.).
The consolidated plaintiffs seek preliminary and injunctive relief, restitution,
disgorgement, monetary and statutory damages (Id.).
On October 21, 2021, the SDNY Court held a pre-motion conference on
Defendant's request to file a motion to dismiss the consolidated complaint, and a briefing
schedule was set allowing for Defendant to file a motion to dismiss on or before

November 12, 2021 (See Nieves v. The Procter & Gamble Co., No. 7:21-CV-00186 (S.D.N.Y.),
at Docket Entry dated October 21, 2021).
Defendant now asks the Court to transfer, dismiss, or stay all proceedings and
deadlines in this action pending resolution of the SDNY Action under the “first-to-file”
rule or otherwise for the convenience of the parties.
Discussion
No mechanical rule governs the handling of overlapping cases. Blair v. Equifax
Check Servs., Inc., 181 F.3d 832, 838 (7th Cir. 1999). “The first-to-file rule provides that a
district court may “for reasons of wise judicial administration” dismiss or stay “a parallel
action that is already pending in another federal court.” Serlin v. Arthur Andersen & Co.,
3 F.3d 221, 223 (7th Cir. 1993); Guill v. All. Res. Partners, L.P., No. 16-CV-0424-NJR, 2017
WL 1132613, at *2 (S.D. Ill. Mar. 27, 2017). While the Seventh Circuit Court of Appeals
“does not rigidly adhere to the first-to-file rule,” the decision to invoke the rule is part of
the district courts’ “inherent power to administer their dockets so as to conserve scarce
judicial resources” by avoiding duplicative litigation. Trippe Mfg. Co. v. Am. Power
Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995); see also Askin v. Quaker Oats Co., No. 11-
CV-111, 2012 WL 517491, at *3 (N.D. Ill. Feb. 15, 2012).
District courts are accorded “a great deal of latitude and discretion in determining
whether one action is duplicative of another, but generally, a suit is duplicative if the
‘claims, parties, and available relief do not significantly differ between the two actions.”
See Serlin, 3 F.3d at 223; see also McReynolds v. Merrill Lynch & Co., Inc., 694 F. 3d 873, 889
(7th Cir. 2012). However, second filed actions may proceed where favored by the

interests of justice. Nicholson v. Nationstar Mortgage LLC of Delaware, 2018 WL 3344408, at
*5 (N.D. IIL. July 6, 2018); see also Blair, 181 F.3d at 838; Serlin, 3 F.3d at 223.
Plaintiff's complaint is substantially similar to the consolidated complaint in
SDNY. Both suits identify the same product Crest Gum & Enamel Repair Toothpaste —

as bearing misleading labels. The suits identify the same key phrases, including, “gum
repair” and “reversing gingivitis”, as the sources of misrepresentation, and also cite the
same facts from the American Dental Association to support their claims that the product
cannot repair gums without assistance from a dentist. While the SDNY Action does not
specifically involve Illinois based consumer fraud claims, the question of whether cases
are substantially similar is a question of substance rather than form. See Jaramillo v.
DineEguity, Inc., 664 F.Supp.2d 908, 916 (N.D. Ill. 2009). “As long as the underlying facts

are the same . . . the fact that the two complaints allege violations of different state laws
is not enough to render them substantially dissimilar for purposes of the first-to-file
analysis.” Askin, 2012 WL 517491 at *3.
Nevertheless, Defendant as the moving party, has not met its burden to show that
transfer is appropriate here. See Forcillo v. LeMond Fitness, Inc., 220 F.R.D. 550, 552, 3-CV-
565-MJR (S.D. Il. 2004) (citing Heller Financial Inc. v. Midwhey Powder Co., Inc., 883 F.2d
1286 (7th Cir. 1989) (the burden is on the moving party to establish that transfer is
warranted)). The Seventh Circuit appears to authorize transfer of a case filed here to the
district of an earlier-filed case only if 28 U.S.C. § 1404(a) authorizes such a transfer of

venue. See Rsh. Automation, Inc. v. Schrader-Bridgeport Int’l., Inc., 626 F.3d 973, 980 (7th Cir.
2010); BRT Heavy Equip., LLC v. C. Norris Mfg., LLC, 14-CV-1407-MJR, 2015 WL 13158332,

at *5 (S.D. Ill. Apr. 15, 2015) (The sequence in which two federal cases are filed should be
considered but is only one factor in a transfer analysis); see also Aliano v. Quaker Oats Co.,
2017 WL 56638, at *4 (N.D. Ill. Jan. 4, 2017). 28 U.S.C. § 1404(a) provides that “[f]or the
convenience of parties and witnesses, in the interest of justice, a district court may transfer
any civil action to any other district or division where it might have been brought or to
any district or division to which all parties have consented.”
To satisfy the “where it might have been brought” requirement, transfer is
appropriate under § 1404(a) if three criteria are met: (1) venue is proper in the transferor
district; (2) venue and jurisdiction are proper in the transferee district, and (3) transfer of
the case will serve the convenience of the parties and witnesses and promote the interest
of justice. See BRT Heavy Equip., LLC., 2015 WL 13158332, at *5. The federal venue statute,
28 U.S.C. § 1391(b), provides that a civil action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of the property
that is subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought . . .
any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
There is no question that venue is proper in this, the transferor district. The parties
have not challenged venue here, and the allegations in Plaintiff's complaint make clear
that a substantial part of the events giving rise to Plaintiff's claim - Defendants’

marketing and sale of its products, and Plaintiff's purchase of the products - occurred
within this District. Accordingly, venue is proper here under 28 U.S.C. § 1391(b)(2).
However, venue and jurisdiction in the Southern District of New York is less clear.
Apart from a blanket statement by Defendant that venue is proper in the Southern
District of New York, Defendant has not offered any factual allegations to support this.
The alleged activities giving rise to Plaintiff's claim all occurred in Illinois. Further,
Defendant is a resident of Ohio (Doc. 1, { 9), as residence is defined by § 1391(c)(2)3. As
such, Defendant has not established that venue would be appropriate under 28 U.S.C. §
1391(b)(1) or (2).
Similarly, because the alleged activities giving rise to Plaintiff's claim all occurred
in Illinois, it is unlikely that there would be a sufficient link between the “forum and the
underlying controversy” to allow the Southern District of New York to exercise specific
personal jurisdiction over Defendant in a suit brought by Plaintiff. See Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 916, 919 (2011); see also Mussat v. IQVIA, Inc., 953
F.3d 441, 447 (7th Cir. 2020). Defendant has not argued that its contacts with New York
are so “continuous and systemic” as to render it “essentially at home” there, such that the
Southern District of New York could exercise general personal jurisdiction over
Defendant in a suit brought by Plaintiff. See Daimler AG v. Bauman, 571 U.S. 117, 139
(2014). While Defendant, who is now seeking to transfer to that district, would surely
consent to personal jurisdiction in New York, the Supreme Court has determined that a

3 See 28 U.S.C. § 1391(c)(2) (if a defendant is an entity with the capacity to sue and be sued, whether or not
incorporated, it shall be deemed to reside “in any judicial district in which such defendant is subject to the
court’s personal jurisdiction with respect to the civil action in question.”).

defendant’s subsequent consent to jurisdiction is irrelevant to the question of “where [the
case] might have been brought” initially. Hoffman v. Blaski, 363 U.S. 335, 342-43 (1960). In

sum, Defendant has not met its burden to show that the Southern District of New York is
a “district or division where [Plaintiff’s case] might have been brought” initially under §
1404(a).
The Court may still contemplate the possibility of a stay. Here, there is significant
overlap between the two cases such that there is a possibility that the SDNY Action could
dispense with certain issues and relief that may not need to be revisited here.
Nevertheless, Plaintiff's allegations of prejudice merit additional consideration. This case
and the SDNY Action are largely in their infancies. Indeed, this matter appears to be
further along than the SDNY Action with a fully briefed motion to dismiss and a set
scheduling order. The Parties have further begun discovery and negotiated agreed upon
ESI and discovery protocols here.
Plaintiff also argues that he and the putative Illinois class members will be
prejudiced by a stay because the anticipated class members will likely need to self-
identify and the delay caused by a stay of unknown - yet likely long - duration would
create a substantial risk of putative class members being unable to recall whether they
purchased the class products within the applicable statute of limitations. These fears are
not unfounded and weigh against the imposition of a stay, particularly considering the
comparative stages of litigation in both matters, and because Defendant failed to present
any arguments of a potential hardship should it be required to continue litigating both
cases.

“Tf there is even a fair possibility that the stay will work damage to someone else,
the party seeking the stay must make out a clear case of hardship or inequity in being
required to go forward.” Nicholson v. Nationstar Mortgage, LLC of Delaware, 2018 WL
334408, at *4 (N.D. Ill. Jul 6, 2018) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)
(internal markings and quotations omitted). Defendant has not made a clear case of
hardship or inequity here. Moreover, Plaintiffs counsel has represented that Plaintiff is
willing to work with the attorneys in the SDNY Action to avoid unnecessary duplication.
At this time, the development of a joint discovery plan may prove more useful in
mitigating any potential hardships on Defendant and would better serve the interests of
justice than a limitless stay. Given these facts, the Court finds that the interests of justice
would not be served by staying the case pending resolution of the SDNY Action at this
time. However, should different circumstances arise during the course of this litigation
which may warrant the imposition of a stay, the parties are granted leave to seek such
relief from this Court as may be appropriate.
Conclusion
For the foregoing reasons, Defendant’s Motion to Stay, Dismiss, or Transfer (Doc.
34) is DENIED. The Court will issue separate opinions on Defendant's Motion to Dismiss
and the parties’ Motion for Protective Order and Entry of ESI Protocol.
SO ORDERED. A L WJ
Dated: October 29, 2021 fists W J “—
DAVID W. DUGAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10154254. Public record. Not legal advice.