OSBORNE v. MENU FOODS INC. - Document No. 3
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Case 1:07-cv-03242-NLH-AMD Document 3 Filed 07/09/2007 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Lauri A. Osborne, Individually and On Behalf ) No. 3:07 CV 00469 (RNC)
of All Others Similarly Situated, )
Plaintiff, ) CLASS ACTION
vs. )
Menu Foods, Inc. )
Defendant. )
)
MOTION FOR PRESERVATION OF EVIDENCE
The plaintiff Lauri A. Osborne on behalf of herself and all similarly situated hereby
moves for an Order of Preservation of Evidence on the following grounds:
1. On March 27, 2007 the plaintiff filed her causes of action for breach of warranty
and negligence seeking various relief for herself as well as class certification for persons that
purchased contaminated food products produced by the defendant Menu Foods, Inc.
manufactured on or about December 3, 2006 and thereafter which were recalled.
2. Plaintiff is also requesting certification of a subclass of all persons and entities
that have purchased pet food products that Menu Foods Inc. manufactured on or about December
3, 2006 and thereafter that were recalled in the State of Connecticut.
3. Excluded from such subclass and from the class would be officers employees of
each of the defendants, plaintiff’s counsel and any judges or justices presiding over this action.
4. Defendant’s conduct in this matter includes the fact that they may have
permanently affected the owners and families of thousands of pets. Specifically, it has been
alleged and disclosed to the FDA that the defendant tested its contaminated product on
approximately fifty pets, seven died following ingestion of the food yet unreasonably waited
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Case 1:07-cv-03242-NLH-AMD Document 3 Filed 07/09/2007 Page 2 of 4
weeks before issuing a recall.
5. Over sixty million cans and/or package of contaminated food have been recalled.
6. Defendant’s conduct in this matter raises serious questions regarding future
conduct that they may take regarding the preservation of evidence critical to the prosecution of
this cause. The New York Times within the past two months has published an article reflecting
that pet food production was “an extremely secretive industry.” (The New York Times, Weekend
Review, March 25, 2007, “for cats and dogs, life is a bowl of ...” in which a statement was made
by Marian Nestle, a New York University professor and co-author on a book regarding the pet
food industry to be published next year.)
7. Mr. Robert W. Luba is the chairman of the Board of Trustees for Menu Foods
Income Fund, closely related entity to the defendant, and he previously served as a director of
Safety-Kleen Corp., a large hazardous waste operator when that company filed for bankruptcy in
June of 2000. Mr. Luba was named as the defendant in a Class Action regarding false
representations of the financial condition of Safety-Kleen, and he resigned in 2002 amid
allegations that investors had been mislead and Safety-Kleen Corp. agreed to pay $148,000,000
to monitor a hazardous waste landfill and clean up site in the state of California.
8. The defendant should preserve documents, physical evidence, contaminated food
product, and other evidence under its control including but not limited to, computer generated
evaluations, e-mails, internal electrically filed memorandum, and corporate notes so that this
matter may proceed and fairly adjudicated as the resolution will depend on the preservation of all
pertinent evidence.
9. In order for the preservation of evidence and documents would also prevent
destruction of relevant documents which may be impacted by any corporate policies of the
Case 1:07-cv-03242-NLH-AMD Document 3 Filed 07/09/2007 Page 3 of 4
defendant, for example, to shred certain documents after a given time period.
Wherefore, since it would work no great hardship on the defendant to maintain
documents and other material physical evidence which is relevant to the subject matter of this
litigation that is in the custody care and control of the defendant, the plaintiffs Lauri Osborne, on
behalf of herself and all other similarly situated moves the Court for an Order of Preservation of
Documents and Evidence. A proposed Order is attached hereto.
PLAINTIFF, LAURI A. OSBORNE and All Others
Similarly Situated
By:_______________________
Bruce E. Newman
NEWMAN, CREED & ASSOCIATES
99 North Street, Route 6
P.O. Box 575
Bristol, CT 06011-0575
(860) 583-5200
Federal Bar No.: 12301
Case 1:07-cv-03242-NLH-AMD Document 3 Filed 07/09/2007 Page 4 of 4
ORDER
See attachment.
CERTIFICATION
I hereby certify that on the May 9, 2007, a copy of the foregoing document was filed
electronically and served by mail on anyone unable to accept electronic filing. Notice of this
filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by
mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing.
Parties may access this filing through the court’s CM/ECF System.
/s/ Bruce E. Newman
______________________
Bruce E. Newman
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