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Filing # 138738520 E-Filed 11/17/2021 03:56:24 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
MARCIAL TORREYES, Case No: 50-2020-CA-007894-MB
Plaintiff Division: RE (Civil)
GODIVA CHOCOLATIER, INC.,
Defendant
/
PLAINTIFF’S AMENDED RESPONSE IN OPPOSITION TO DEFENDANT
GODIVA CHOCOLATIER’S MOTION TO STAY
Plaintiff, Marcial Torreyes, by and through undersigned counsel, hereby
files this Amended Response in Opposition to the Defendant, Godiva
Chocolatier, Inc’s, Motion to Stay, and in response, states as follows:
INTRODUCTION
On October 15, 2021, Godiva filed a Motion to Stay in this case, asking
the Court to stay these proceedings for six months. In support of that filing,
Godiva argues that stay is justiied, Decalise a Motion for Preliminary Approval
of Class Settlement has been filed in a parallel action pending in the Southern
District of New York, entitled Hesse, et al. v. Godiva Chocolatier, Inc. No. 1:19-
cv-00972-AJN (“the Hesse Action”).
In its motion, Godiva maintains that Plaintiff is a Class Member in this
Settlement, and if approved, Plaintiffs claims before this Court will be rendered
moot. For the reasons set forth below, Godiva’s motion should be denied in full.
CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZN CLEDY 4414719NN4 N2-Fe-9A DNA
HILLY. PAL DUA VUUINE TT, PL, JUOL I mDnNuecy, VLU, Dieu.) vo.uu.et civARGUMENT
A. A Stay is Entirely Premature
Godiva’s motion should be denied for several reasons. First, there is no
reason to enter a stay at this time. Nothing that occurs in this case over the
next several months will jeopardize or infringe on the New York class action or
the court’s jurisdiction in that New York case. Allowing Plaintiff to proceed with
discovery in this case is appropriate, because Plaintiffs claims would not be
rendered moot, even if the New York class action proceeds to judgment.
Plaintiff is well within her right to opt-out of the proposed New York class and
pursue relief in this Court. See Faught v. Am. Home Shield Corp., 668 F.3d
1233, 1241-42 (11th Cir. 2012) (objections that a settlement deprived class
members of rights under a consumer protection statute were "unconvincing"
since class members were "free to opt out of the class and still have the option
of .. . filing an individual suit").
Simply put, there is no harm - nor any threat of harm - by allowing
Plaintiff to engage in discovery concerning her FDUTPA claim.
B. A Stay is Not Warranted, as this Case Involves Unique Issues and
Damages that are Not Encompassed in the NY Action.
A stay is also inappropriate because this action involves unique damages
-which are not asserted in the pending New York ciass action. This action
seeks only to include Florida consumers, not a nationwide class.
In the New York class action (which was based on New York and
California state law) - plaintiffs are seeking to settle those claims which would
result in an average recovery of $.46 per qualifying purchase if Plaintiffs were
2to prevail at trial. By contrast, in this case, Plaintiffs assert that Godiva
knowingly and intentionally sold a mislabeled product to Florida consumers.
While the New York class action damages model was based on the reduced
value of the product (due to its mislabeling) — Plaintiff in this case intends to
prove that the product had no value — since it was intentionally mislabeled by
Godiva. This would entitle Florida consumers to a full refund (their actual
damages), plus all other damages available under Florida law. There is already
evidence of this intentional conduct. Godiva previously admitted, back in 1996,
that the truffles produced in America are made from a different recipe and are
materially different than Belgian truffles made by Godiva. See Am. Compl, J 10
and Ex. B. thereto. It does not appear that counsel in the New York action have
advised the New York court of this nending case and the nature of Plaintiff's
damages sought here.
Additionally, many courts have held that the mere existence of a parallel
lawsuit that seeks to adjudicate the same cause of action does not itself provide
sufficient grounds for an injunction or stay of a state action in favor of a
pending federal action. For instance, protection of a trial date in the federal
court has been found to be insufficient to support an injunction against a
competing state case, Ref, Sus, of Ala, pv. J.P, Morgan Chase & Co,, 386 F.3d
419, 430 (2d Cir. 2004).
Finally, while Godiva may argue that this matter should be stayed
because the New York action was filed first, that argument does not support a
stay, as that rule must be raised in the New York, rather than Florida action.“(T]he ‘first to file rule’ not only determines which court may decide the merits
of substantially similar issues, but also establishes which court may decide
whether the second suit filed must be dismissed, stayed or transferred and
consolidated.” Hernandez v. Cracker Barrel Old Country Store, Inc., 2014 WL
5175715 at *1 (M.D. Fla. Oct. 14, 2014). “Courts applving this rule generally
agree ‘that the court in which an action is first filed is the appropriate court to
determine whether subsequently filed cases involving substantially similar
issues should proceed.” Jd. Under the first filed rule, the court where the
subsequently filed action has been filed should defer to the court where the
first action was filed to allow that court to decide whether it should exercise
jurisdiction over both cases in a consolidated action. Id. Under this precedent,
this Court should deny Defendant’s Motion to Stay, without even examining
Defendant’s arguments, because Defendant should have filed this Motion in
the allegedly first filed court in New York.
WHEREFORE, in view of the foregoing, Plaintiff requests that the Court
deny the Defendant’s motion to stay and that the Court grant any further relief
it deems just and proper.
Dated this 17 day of November, 2021:
By: /s/ Howard W. Rubinstein
Howard W. Rubinstein, Esq.
The Law Office of Howard W. Rubinstein
1281 N. Ocean Dr., Apt 198
Singer Island, FL 33404
Telephone: 832-715-2788
Fax: 561-688-0630Email: howardr@pdq.net
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by e-mail generated by the Florida Court E-Filing Portal to the
attorneys of record in this case on this 17th day of November, 2021.
By: Zs/ Howard W. Rubinstein
Howard W. Rubinstein, Esq.
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Filing # 138738520 E-Filed 11/17/2021 03:56:24 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARCIAL TORREYES, Case No: 50-2020-CA-007894-MB Plaintiff Division: RE (Civil) GODIVA CHOCOLATIER, INC., Defendant / PLAINTIFF’S AMENDED RESPONSE IN OPPOSITION TO DEFENDANT GODIVA CHOCOLATIER’S MOTION TO STAY Plaintiff, Marcial Torreyes, by and through undersigned counsel, hereby files this Amended Response in Opposition to the Defendant, Godiva Chocolatier, Inc’s, Motion to Stay, and in response, states as follows: INTRODUCTION On October 15, 2021, Godiva filed a Motion to Stay in this case, asking the Court to stay these proceedings for six months. In support of that filing, Godiva argues that stay is justiied, Decalise a Motion for Preliminary Approval of Class Settlement has been filed in a parallel action pending in the Southern District of New York, entitled Hesse, et al. v. Godiva Chocolatier, Inc. No. 1:19- cv-00972-AJN (“the Hesse Action”). In its motion, Godiva maintains that Plaintiff is a Class Member in this Settlement, and if approved, Plaintiffs claims before this Court will be rendered moot. For the reasons set forth below, Godiva’s motion should be denied in full. CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZN CLEDY 4414719NN4 N2-Fe-9A DNA HILLY. PAL DUA VUUINE TT, PL, JUOL I mDnNuecy, VLU, Dieu.) vo.uu.et civARGUMENT A. A Stay is Entirely Premature Godiva’s motion should be denied for several reasons. First, there is no reason to enter a stay at this time. Nothing that occurs in this case over the next several months will jeopardize or infringe on the New York class action or the court’s jurisdiction in that New York case. Allowing Plaintiff to proceed with discovery in this case is appropriate, because Plaintiffs claims would not be rendered moot, even if the New York class action proceeds to judgment. Plaintiff is well within her right to opt-out of the proposed New York class and pursue relief in this Court. See Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1241-42 (11th Cir. 2012) (objections that a settlement deprived class members of rights under a consumer protection statute were "unconvincing" since class members were "free to opt out of the class and still have the option of .. . filing an individual suit"). Simply put, there is no harm - nor any threat of harm - by allowing Plaintiff to engage in discovery concerning her FDUTPA claim. B. A Stay is Not Warranted, as this Case Involves Unique Issues and Damages that are Not Encompassed in the NY Action. A stay is also inappropriate because this action involves unique damages -which are not asserted in the pending New York ciass action. This action seeks only to include Florida consumers, not a nationwide class. In the New York class action (which was based on New York and California state law) - plaintiffs are seeking to settle those claims which would result in an average recovery of $.46 per qualifying purchase if Plaintiffs were 2to prevail at trial. By contrast, in this case, Plaintiffs assert that Godiva knowingly and intentionally sold a mislabeled product to Florida consumers. While the New York class action damages model was based on the reduced value of the product (due to its mislabeling) — Plaintiff in this case intends to prove that the product had no value — since it was intentionally mislabeled by Godiva. This would entitle Florida consumers to a full refund (their actual damages), plus all other damages available under Florida law. There is already evidence of this intentional conduct. Godiva previously admitted, back in 1996, that the truffles produced in America are made from a different recipe and are materially different than Belgian truffles made by Godiva. See Am. Compl, J 10 and Ex. B. thereto. It does not appear that counsel in the New York action have advised the New York court of this nending case and the nature of Plaintiff's damages sought here. Additionally, many courts have held that the mere existence of a parallel lawsuit that seeks to adjudicate the same cause of action does not itself provide sufficient grounds for an injunction or stay of a state action in favor of a pending federal action. For instance, protection of a trial date in the federal court has been found to be insufficient to support an injunction against a competing state case, Ref, Sus, of Ala, pv. J.P, Morgan Chase & Co,, 386 F.3d 419, 430 (2d Cir. 2004). Finally, while Godiva may argue that this matter should be stayed because the New York action was filed first, that argument does not support a stay, as that rule must be raised in the New York, rather than Florida action.“(T]he ‘first to file rule’ not only determines which court may decide the merits of substantially similar issues, but also establishes which court may decide whether the second suit filed must be dismissed, stayed or transferred and consolidated.” Hernandez v. Cracker Barrel Old Country Store, Inc., 2014 WL 5175715 at *1 (M.D. Fla. Oct. 14, 2014). “Courts applving this rule generally agree ‘that the court in which an action is first filed is the appropriate court to determine whether subsequently filed cases involving substantially similar issues should proceed.” Jd. Under the first filed rule, the court where the subsequently filed action has been filed should defer to the court where the first action was filed to allow that court to decide whether it should exercise jurisdiction over both cases in a consolidated action. Id. Under this precedent, this Court should deny Defendant’s Motion to Stay, without even examining Defendant’s arguments, because Defendant should have filed this Motion in the allegedly first filed court in New York. WHEREFORE, in view of the foregoing, Plaintiff requests that the Court deny the Defendant’s motion to stay and that the Court grant any further relief it deems just and proper. Dated this 17 day of November, 2021: By: /s/ Howard W. Rubinstein Howard W. Rubinstein, Esq. The Law Office of Howard W. Rubinstein 1281 N. Ocean Dr., Apt 198 Singer Island, FL 33404 Telephone: 832-715-2788 Fax: 561-688-0630Email: howardr@pdq.net CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by e-mail generated by the Florida Court E-Filing Portal to the attorneys of record in this case on this 17th day of November, 2021. By: Zs/ Howard W. Rubinstein Howard W. Rubinstein, Esq.