Judge Keeps Non-Calif. Plaintiffs in Costco Frozen Berry Class Action

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The federal judge presiding over a frozen berry Costco class action lawsuit has denied the defendant’s motion to dismiss non-California plaintiffs from the case.

The original class action lawsuit was filed after a hepatitis A outbreak allegedly occurred due to the product sold in Costco stores.

U.S. District Judge David O. Carter said that the grounds on which the defense tried to apply a decision from Bristol-Myers Squibb Co. v. Superior Court of California didn’t hold up.

That case led to a decision that California courts couldn’t hold jurisdiction regarding claims raised by plaintiffs who never suffered injury in the state or lived in the state.

As explained by the judge in the Costco class action lawsuit, the defendants already consented to court jurisdiction up until this point and could not suddenly challenge that as they attempted to do in their motion to dismiss.

The Costco class action lawsuit was first filed after an outbreak of Hepatitis A in May 2013. An investigation of that outbreak revealed that it came from a berry mix sold in Costco by brand Townsend Farms Inc.

The contaminated pomegranate seeds were sold in Costco and allegedly caused people to get sick. Both Costco and Townsend were named as defendants in the suit, which was seeking medical costs and vaccines for affected consumers.

When the case was removed to federal court, it also included complaints from consumers in other states, including Colorado, Arizona, Florida, New Mexico, Hawaii, Nevada, Oregon, and Washington.

The California Class in the Costco class action lawsuit has already reached a settlement in the case.

Costco attempted to argue that the 2017 decision from the Bristol-Myers case was key in their motion to dismiss since the defense over jurisdiction was not accessible to them before.

The plaintiffs, in response to the motion to dismiss, pointed out that Costco had not had a problem with the jurisdiction in the case until very recently. The judge referenced that judges in other similar cases have not seen fit to apply the Bristol-Myers decision to alter jurisdiction when that defense was not applicable before.

“Defendants consented to this court’s jurisdiction for four years,” Judge Carter stated. “Defendants waived their ability to raise a personal jurisdiction defense this late in the litigation.”

Although the California subclass has settled, the judge in the Costco class action might wait to see how that process unfolds before making a decision about sending other subclasses to their home districts or to keep them under the general jurisdiction of the current case.

The proposed Class in the Costco class action lawsuit is represented by William D. Marler and Denis Stearns of Marler Clark LLP.

The Costco Frozen Berries Class Action Lawsuit is Jacob Petersen, et al. v. Costco Wholsale Co. Inc., et al., Case No. 8:13-cv-01292, in the U.S. District Court for the Central District of California.

UPDATE: March 2019, a website for Class Members in a Costco hepatitis A berries class action lawsuit has been launched. Click here to learn more.