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Greater Omaha Packing Co. Inc. v. Fairbank Reconstruction Corp.

United States District Court, D. Maine

September 23, 2014



GEORGE Z. SINGAL, District Judge.

Before the Court is Defendant's Motion to Dismiss (ECF No. 6).[1] For reasons explained herein, the Court GRANTS the Motion.


The Federal Rules of Civil Procedure require only that a complaint contain "a short and plain statement of the grounds for the court's jurisdiction... a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought[.]" Fed.R.Civ.P. 8(a)(1)-(3). The Court assumes the truth of the complaint's well-pleaded facts and draws all reasonable inferences in plaintiff's favor. Schatz v. Republican State Leadership Comm. , 669 F.3d 50, 55 (1st Cir. 2012). Under Rule 12(b)(6), the Court generally "may consider only facts and documents that are part of or incorporated into the complaint." United Auto., Aero., Agric. Impl. Workers of Am. Int'l Union v. Fortuno , 633 F.3d 37, 39 (1st Cir. 2011) (internal citations omitted). However, the Court may "augment" the factual allegations pled in the complaint with "matters of public record and facts susceptible to judicial notice." Haley v. City of Boston , 657 F.3d 39, 46 (1st Cir. 2011) (citing In re Colonial Mortg. Bankers Corp. , 324 F.3d 12, 15 (1st Cir. 2003); see also Giragosian v. Ryan , 547 F.3d 59, 65 (1st Cir. 2008) ("A district court may also consider documents incorporated by reference in [the complaint], matters of public record, and other matters susceptible to judicial notice.'") (quoting In re Colonial Mortgage Bankers Corp. , 324 F.3d at 20 (1st Cir.2003)).

A viable complaint generally must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also Bodman v. Maine, Dept. of Health & Human Servs. , 720 F.Supp.2d 115, 121 (D. Me. 2010) (denying motion to dismiss a hostile work environment claim and explaining that "the determination of whether an issue is trialworthy simply is not the same as the determination of whether a plaintiff states a claim upon which relief can be granted"). In considering a motion to dismiss, the Court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). Plaintiffs must include enough facts supporting a claim for relief that "nudge[ ] their claims across the line from conceivable to plausible." Twombly , 550 U.S. at 570. "If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Haley v. City of Boston , 657 F.3d 39, 46 (1st Cir. 2011) (quoting SEC v. Tambone , 597 F.3d 436, 442 (1st Cir. 2010)); see also Iqbal , 556 U.S. at 678 (stating that the Court need not accept "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements").


For the purposes of this motion, the Court considers the facts as alleged in Plaintiff's Complaint (ECF No. 1), as well as the record in consolidated cases of Long v. Fairbank Reconstruction Corp., D. Me Docket #1:09-cv-592-GZS and Smith v. Fairbank Reconstruction Corp., D. Me. Docket #2:10-cv-60-GZS (hereinafter, " Long/Smith ") and the case of Jones v. Fairbank Reconstruction Corp., D. Me. Docket # 2:11-cv-437-GZS (hereinafter, " Jones ").[2]

The three cases just mentioned involved three separate Maine plaintiffs who were sickened by an E.coli O157:H7 outbreak in the fall of 2009 (the "2009 Northeast Outbreak"). Ultimately, the illnesses of these plaintiffs and other individuals were linked to contaminated ground beef from a ground beef processing facility in Ashville, New York. At the time, that facility was operated by Defendant Fairbank Reconstruction Corp. ("Fairbank"). Fairbank ultimately recalled approximately 500, 000 pounds of ground beef linked to the 2009 Northeast Outbreak.

One of Fairbank's sources for the beef trim used to make its ground beef in 2009 was Plaintiff Greater Omaha Packing Company ("GOPAC"). GOPAC operates a beef slaughter and fabrication facility in Omaha, Nebraska, which supplies raw beef trim to ground beef processors in the United States. In the Long/Smith case, Fairbank added GOPAC to the litigation as a thirdparty defendant. In the later filed Jones case, the plaintiff named both Fairbank and GOPAC as defendants. The allegations of GOPAC's current complaint arise out of the prior litigation in Long/Smith and Jones. Thus, the Court begins its factual recitation with a brief procedural history of these cases.

A. Prior Litigation Involving the 2009 Northeast Outbreak

1. Long/Smith

Long v. Fairbank Reconstruction Corp., D. Me. Docket # 1:09-cv-592-GZS, was filed on November 20, 2009. Smith v. Fairbank Reconstruction Corp., D. Me. Docket # 2:10-cv-60-GZS, was filed on February 11, 2010. In both cases, the plaintiffs had sued Fairbank for damages and Fairbank claimed that GOPAC was required to indemnify Fairbank for its damages under the terms of the contractual guarantee in place when it purchased beef from GOPAC. Both cases proceeded on a similar discovery track with a number of discovery disputes brought to the attention of the Court.

During Long/Smith discovery, "GOPAC requested, among other items, all daily production and operational records, between June 1, 2009 and October 31, 2009, relating in any way to the daily production as to Establishment No. 492 [Fairbank].' (Production Requests at No. 12)." (Compl. ¶53.) In its responses to this request, dated October 6, 2010, and signed by Attorney Shawn Stevens, acting as counsel for Fairbank, Fairbank stated the responsive records had already been provided and that it was in the process of reviewing and assembling additional documents which would be made available in Ashville, New York on October 14 and 15, 2010. (Compl. ¶54.) Shortly after the Ashville production, Attorney Stevens "represented that there are only a few hundred Fairbank documents in this matter which are relevant to the recalled ground beef processed by Fairbank on the three production days in question (September 14, 15 and 16, 2009). GOPAC has had documents relating to these key production days since early August, when Fairbank provided them pursuant to its Rule 26 initial disclosures.' (Letter from Stevens to Denham of October 21, 2010)." (Compl. ¶55.) After Fairbank's Vice President and Chief of Food Safety, Time Biela, was deposed on or about December 2, 2010, one of GOPAC's attorneys wrote Fairbank's attorneys seeking the production or location information of the inventory records Biela had described during his deposition, including "[a]ll computer records regarding the Bar Code scan labels.' (Letter from Denham to Weber/Stevens of December 10, 2010)." (Compl. ¶59.)

On January 9, 2011, GOPAC counsel wrote to the Court requesting a discovery dispute conference. (Compl. ¶60.) GOPAC raised the issue of computerized records in this letter. (Id.) Specifically, GOPAC cited to the testimony of Fairbank's Tim Biela wherein he noted the existence of a scanning process relative to inventory control and finished products. Additionally, GOPAC cited the testimony of Fairbank's Don Butler who stated that Fairbank had inventory records that could be extracted from the computer system. (Compl. ¶61.) On January 17, 2011, Fairbank counsel Ralph Weber responded to GOPAC's letter and told the Court, in relevant part, that "[a]ll of Fairbank's production records, as well as information relating to each of its suppliers, were already produced.' (Weber letter of 1-17-11)." (Compl. ¶62.) In that same letter, Attorney Weber "also represented that GOPAC had already received Fairbank's voluminous computer generated records'" and that "all computer generated production and tracing records have been provided." (Compl. ¶¶63 & 67.) Fairbank's counsel also represented that the facility (Fairbank) did not maintain copies of production records like weight manifests. (Compl. ¶64.)

After a hearing on the matter, the Magistrate Judge ultimately denied GOPAC's request to reopen discovery and compel production of further evidence by GOPAC on January 24, 2011. (See 1/24/11 Report of Hearing & Order ( Long ECF No. 128).) The January 24, 2011 ruling stated in a footnote: "[T]o the extent that GOPAC contends that Fairbank appears to have failed to produce (i) inventory records that Mr. Butler testified could be extracted from Fairbank's computer system or (ii) all responsive weight manifests, ' Fairbank represented on December 20, 2010, and reiterated in the context of the instant dispute, that any such records have been produced. GOPAC has not made a persuasive showing that this representation is inaccurate." (Id. at 9 n.1.) In explaining his decision, the Magistrate Judge noted that the discovery deadline had expired on December 20, 2010, after several extensions and that GOPAC's counsel, while "working feverishly on this case, " should have brought its remaining discovery issues to the Court's attention prior to January 9, 2011, which was the day prior to the dispositive motion deadline. (Id. at 11-12.)

Fairbank ultimately entered into settlements with both Long and Smith leaving only its indemnification claims against GOPAC for trial. Dispositive motions were filed by both Fairbank and GOPAC that queued up the legal and factual issues related to these indemnification claims. After ruling on the dispositive motions, the cases were consolidated for trial. Notably, this consolidated case became the first case involving the 2009 Northeast Outbreak to proceed to trial, although multiple other cases remained pending in other jurisdictions. By the time of the Long/Smith trial in November 2011, Fairbank and GOPAC both agreed that Long and Smith had suffered damages as a result of E. coli O157:H7 and that both women had contracted E. coli O157:H7 from ground beef produced by Fairbank.

At a consolidated jury trial of the claims remaining between Fairbank and GOPAC, the evidence presented showed that Smith spent $5.83 to purchase case ready 85/15 ground beef product from a Shaw's in Portland, Maine (a/k/a Shaw's Westgate) on September 23, 2009 and Long spent $2.31 to purchase case ready 85/15 ground beef product from a Shaw's in Augusta, Maine on September 19, 2009. See Jones v. Fairbank Reconstruction Corp., 2:11-CV-437-GZS, 2013 WL 6019294 (D. Me. Nov. 13, 2013). The trace-back of these two packages of beef from the respective Shaw stores to a particular production at Fairbank's Ashville plant, and in turn, to GOPAC beef trim that was produced on September 11, 2009, was hotly contested.

Fairbank presented evidence tending to show that Ms. Long and Ms. Smith, as well as all of the other 2009 Northeast Outbreak patients, consumed ground beef containing GOPAC 50-50 sirloin trim. (Compl. ¶78.) Additionally, Fairbank presented evidence tending to show that GOPAC 50-50 sirloin trim was a common denominator in the 2009 Northeast Outbreak. (Id.) Fairbank presented testimony that pointed to Invoice 30243 as an invoice that tracked to the 85/15 case-ready ground beef that Long had purchased, while Fairbank asserted that Smith had purchased 85/15 product shipped to Shaw's under Invoice 30245.[3] (Id.)

Much evidentiary presentation at the Long/Smith trial focused on the trace-back conducted by state and federal authorities during the fall of 2009. This investigation culminated in the USDA Food Safety and Inspection Service announced recall of Fairbank's ground beef products produced between September 14, 2009 and September 16, 2009. Fairbank introduced the "Lutz Chart, " which compiled cases that government officials determined were part of the 2009 Northeast Outbreak.[4] Fairbank also presented evidence of pulsed-field gel electrophoresis (PFGE) testing and multiple loci VNTR analysis (MLVA) of cultures taken from multiple sick individuals, including Long and Smith, which showed a genetic link in the E. coli O157:H7 bacteria that was found in samples collected from people sickened during the outbreak. (Compl. ¶78.d.) The Long/Smith jury also heard evidence regarding GOPAC's "hot day" on September 11, 2009, in which their own internal testing detected the presence of E. coli O157:H7 in the slaughterhouse.

The Long/Smith case was ultimately submitted to the jury with a special verdict form on Fairbank's claim that GOPAC breached an express warranty contained in the Fairbank Guarantee. The jury responded "Yes" to each of the following questions:

1. Do you find that GOPAC delivered adulterated raw beef containing E. coli O157:H7 to Fairbank in September 2009?
2. Do you find that Fairbank acted as a reasonable buyer in using the adulterated raw beef delivered by GOPAC in September 2009?
3. Do you find that this same adulterated raw beef, which was ground by Fairbank, was later consumed by Long causing her injuries and resulting in her receipt of a settlement of $100, 000?
4. Do you find that this same adulterated raw beef, which was ground by Fairbank, was later consumed by Smith causing her injuries and resulting in her receipt of a settlement of $400, 000?

(See, e.g., Special Verdict Form ( Long ECF No. 382).) The Court thereafter, on November 14, 2011, entered judgment in favor of Fairbank on its claim that GOPAC breached the express warranty on the raw beef it delivered to Fairbank. (See Long ECF No. 385.) Following post-trial motions, GOPAC appealed this judgment presenting multiple claims of error to the First Circuit. During that appeal process, counsel for Fairbank made multiple arguments and representations regarding the factual support for the verdict reached in Long/Smith. (Compl. ¶¶99-108.) Ultimately, the Court of Appeals affirmed the judgment on November 21, 2012 and issued its mandate on December 26, 2012. See generally Long v. Fairbank Reconstruction Corp. , 701 F.3d 1 (1st Cir. 2012). Thereafter, this Court awarded ...

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