Third Circuit disposition — 091580np-pdf

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1580
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IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION
DONALD R. EARL,
Appellant
(Pursuant to Fed. R. App. P. 12(a))
(Appellant is “an objector and nonparty in interest”)
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 07-cv-02867)
District Judge: Honorable Noel L. Hillman
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 22, 2009
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: September 23, 2009)
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OPINION
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PER CURIAM
Donald Earl, pro se, appeals from the District Court’s order denying his motion to
intervene and his Rule 60(b) motion to vacate. For the reasons that follow, we shall

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affirm the District Court’s order.
This case relates to a civil class action products liability lawsuit filed in the District
of New Jersey, and currently on appeal. See In Re: Pet Food Products Liability
Litigation, D.N.J. Civ. No. 07-cv-02867; C.A. No. 08-4741 & 08-4779. That suit arose
out of a March 2007 recall of pet food products that allegedly contained contaminated
wheat gluten and/or rice protein concentrate obtained from China. Plaintiffs filed more
than one hundred lawsuits against several defendants, including Menu Foods, one of the
manufacturers of the recalled pet food products.
As a part of discovery, Menu Foods and several other defendants stored large
quantities of various recalled food products. Those products were divided into three
categories: 1) cases of pet food subject to the recall (“organized inventory”); 2) thousands
of pounds of unprocessed, perishable raw wheat gluten; and 3) cases containing recalled
and unrecalled pet food, pet food made by other companies, and other items
(“unorganized inventory”). The defendants sought an order from the District Court
permitting them to limit the amount of material they had to store. On December 18, 2007,
the District Court entered an order granting the defendants’ motion, which allowed them
to retain a statistically significant representative sampling of the organized inventory and
to dispose of the remaining recalled pet food, the raw wheat gluten and the unorganized

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Defendants argued this was done so as to limit the significant costs of storing the1
materials and to dispose of materials that had become a public health hazard.
At no point has Earl ever been a party to the class action lawsuit in the Pet Food2
Recall litigation. Furthermore, the pet food in Earl’s case was manufactured and sold
before the period subject to the recall, although it is unclear from the record exactly how
long before the recall.
The Supreme Court of Washington found that the Superior Court had not abused its3
discretion in entering the disposal order. Earl, it held, had his own samples of the cat
food from the relevant era, and had not shown “that his plan to retrieve 500 samples from
the unorganized inventory, without any methodology establishing how these samples
would be representative, would lead to admissible evidence.”
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inventory. None of the plaintiffs in the class objected to the Court’s order.1
Meanwhile, in Washington State, Appellant Donald Earl had initiated a separate
lawsuit alleging that his cat had died after consuming pet food manufactured by Menu
Foods and sold by The Kroger Company, a grocery store. Menu Foods notified Earl of2
the New Jersey District Court’s order permitting the disposal of the unorganized
inventory. Earl filed an objection in the District Court, arguing that the unorganized
inventory was material to his case and should not be destroyed. The District Court denied
his objection. Menu Foods then filed a motion in the Superior Court of Washington for
permission to dispose of the unorganized inventory as it related to Earl’s case, which the
court granted. Earl attempted to reverse the preservation order, but was denied by the
Washington state courts. Menu Foods completed its disposal of the unorganized3
inventory in June 2008.
Earl then returned to the New Jersey District Court, where in January 2009, he

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filed a Rule 60(b) motion to vacate the District Court’s order disposing of the
unorganized materials, and a motion to intervene as a matter of right in the class action.
However, Earl filed his motions nearly two months after the District Court entered a final
judgment in the underlying Pet Food Recall Litigation and after the case was on appeal.
The District Court denied his motions, finding that he did not demonstrate a sufficient
interest in the unorganized inventory. It also denied his motion for reconsideration. Earl
filed a timely notice of appeal.
This Court reviews the denial of a motion to intervene under Fed. R. Civ. P.
24(a)(2) for an abuse of discretion and should reverse only if the District Court “has
applied an improper legal standard or reached a decision [the Court is] confident is
incorrect.” United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir. 1994);
see also Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 n.4 (3d Cir. 2005). A
litigant seeking intervention as a matter of right under Fed. R. Civ. P. 24(a)(2) must
establish: “1) a timely application for leave to intervene, 2) a sufficient interest in the
underlying litigation, 3) a threat that the interest will be impaired or affected by the
disposition of the underlying action, and 4) that the existing parties to the action do not
adequately represent the prospective intervenor’s interests.” Treesdale, 419 F.3d at 220
(citing Kleissler v. United States Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998)). Each of
these requirements “must be met to intervene as of right.” Mountain Top Condo. Ass’n v.
Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995) (citation omitted).

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The District Court denied the motion to intervene on the ground that Earl’s interest
was insufficient to warrant intervention stating that Earl had not “demonstrated that he
has an interest in the ‘unorganized inventory’ requiring that this Court vacate its prior
orders regarding that inventory.” It then denied his motion to vacate. We agree with the
District Court that Earl did not show an interest in the unorganized inventory, as
described below, but will also affirm on the basis that Earl’s motion to intervene was not
timely filed. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (stating
that the Court may affirm an order on any ground that is supported by the record).
Here, Earl filed his motions to intervene and vacate nearly two months after the
District Court had entered a final judgment in the underlying Pet Food Recall Litigation,
and beyond the thirty-day statutory time period for filing an appeal. See Fed. R. App. P.
4(a). He did not file his motion to intervene for purposes of appealing the District Court’s
final judgment, but for purposes of vacating an order that had no effect on the outcome of
the underlying lawsuit. See Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 131,
134 (3d Cir. 1979) (“Certainly, an effort to intervene after a judgment has become
final . . . presents an extreme example of untimeliness. . . . Where the purpose of a motion
to intervene is to obtain appellate review of a district court order determining the status of
a class, the motion may be considered timely if filed within the time limit for filing a
notice of appeal.”) (citing United Airlines, Inc., v. McDonald, 432 U.S. 385, 392 (1977)).
As a result, Earl’s motion to intervene was untimely.

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In his brief, Earl also argues that: 1) Menu Foods attorneys violated the Rules of4
Professional Conduct by filing a motion to destroy evidence; and 2) that the District Court
did not have subject matter jurisdiction or legal authority to grant a motion to destroy
evidence. We will not consider these arguments in light of our holding that the District
Court properly denied his motions to intervene and vacate.
We also grant the Appellee’s motion to take judicial notice of the opinions filed by5
the courts of Washington state concerning Earl’s attempts to prevent the destruction of
the evidence. We also grant appellee’s and appellant’s motions to file supplemental
appendices.
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We also agree with the District Court that Earl did not demonstrate a sufficient
interest in the litigation to warrant intervention. The purpose of his motion to intervene
was to obtain an order vacating the District Court’s December 18, 2007 order authorizing
the destruction of the unorganized inventory. None of the plaintiffs objected to that order
and Menu Foods destroyed the inventory in June 2008, nearly nine months before Earl
filed his motion to intervene to prevent its destruction. As a result, he had no sufficient
interest in the underlying litigation. Since Earl could not intervene, he was not a party to
the lawsuit and the District Court had no choice but to deny his Rule 60(b) motion.4
Moreover, even if the District Court could have granted his Rule 60(b) motion, to do so
would have been meaningless once the unorganized inventory had been destroyed.
In conclusion, we agree that the District Court correctly denied Earl’s motions to
intervene and to vacate. Costs will be assessed to the appellant. See Fed. R. App. P.
39(a)(2); LAR 39.5

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