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In re Imprelis Herbicide Marketing, Sales Practices and Products Liability Litigation

United States District Court, Third Circuit

January 30, 2014



GENE E.K. PRATTER United States District Judge

Plaintiff Pilgrim Village Associates has moved to extend the deadline to opt out of the class action settlement recently approved by this Court in this matter. Pilgrim Village claims that its failure to file an opt-out form by the specified deadline as required by previous Order of this Court was the result of excusable neglect. Defendant DuPont argues that Pilgrim Village’s failure to timely request to opt out of the settlement was not excusable. The Court agrees that Pilgrim Village could and should have complied with the Court’s Orders with respect to opting out of the settlement and will therefore deny the motion.


Pilgrim Village Associates is one of 29 plaintiffs in the matter of Greener v. E.I. DuPont de Nemours & Co., Civil Action 11-7599, who filed an individual complaint charging DuPont with a variety of products liability claims with respect to DuPont’s Imprelis herbicide. DuPont answered that Complaint in August, 2012. A few months later, Class Plaintiffs in this multidistrict litigation filed for preliminary approval of a classwide settlement of Imprelis claims against DuPont. See In re Imprelis Herbicide Mktg., Sales Practices, & Prods. Liab. Litig., 11- 2284, Docket No. 117. Very shortly afterwards, counsel for Pilgrim Village mailed Pilgrim Village a letter instructing it to fill out and sign an opt out form. See Def.’s Opp., Ex. 1. In February, 2012, before the settlement was preliminarily approved, counsel for a number of individual plaintiffs filed a “Notice of Intention to Opt Out of Class Action Settlement” that listed Pilgrim Village among those plaintiffs who intended to opt out of the settlement. See In re Imprelis, Docket No. 154.

On February 12, 2013, the Court preliminarily approved the class action settlement, and specifically ordered that:

Any Settlement Class Member may opt out of the Settlement by following the “Exclusion” procedure set forth in the Long Form Notice and the Settlement Agreement. All Settlement Class Members who do not opt out in accordance with the terms set forth in the Settlement Notice and the Settlement Agreement will be bound by all determinations and judgments in the Action. Any Class Member who wishes to opt out of the Class must do so in writing by mailing a request for exclusion to the Claims Administrator. Any such request must be postmarked no later than the Opt-Out Deadline, June 28, 2013. The request to opt out must be signed by the Class Member seeking to opt out and must set out the Class Member’s first and last names (or company name), valid mailing address and functioning telephone number.

Id., Docket No. 160, ¶ 8. The Settlement itself provided that DuPont could terminate the agreement if “in its sole discretion, DuPont believe[d] that the number of Opt-Outs was unsatisfactory.” See id., Settlement Agreement and Release, Docket No. 118-1, § IX.A. Three days after the Court preliminarily approved the Settlement, counsel for Pilgrim Village again mailed an opt-out form to their client and instructed it to fill out the form. Counsel for Pilgrim Village also received a Long Form Notice from the court-appointed claims administrator, which included opt out instructions consistent with the Court’s Order. See Def.’s Opp., Ex. 4.

Throughout this time period, counsel for Pilgrim Village, on behalf of all of their Imprelis clients, corresponded with DuPont’s counsel regarding site inspections of their clients’ property.

In July, 2013, counsel for DuPont notified counsel for Pilgrim Village that it would not pursue site visits at that time for properties whose owners had successfully opted out of the settlement. In that letter, DuPont noted that “[a] number of your clients have claims pending in the Imprelis Claims Resolution Process and many of these clients have also requested to opt out of the proposed settlement.” See Pl.’s Mot., Ex. F. In a follow-up letter, DuPont counsel stated, “DuPont is willing to continue with property inspections for any of your clients who wish to continue in the Imprelis Claims Resolution Process. . . If your clients . . . wish to proceed with inspections in the Claims Resolution Process, please let me know and I will arrange for a DuPont arborist to visit their properties.” See id., Ex. H. In the correspondence discussing clients who had opted out, no particular clients were mentioned by name, either by Plaintiffs’ counsel or DuPont’s counsel. See id., Exs. F-I.

On August 7, 2013, the court-appointed claims administrator submitted to the Court a list of class members who had submitted opt out requests. See In re Imprelis, Docket No. 184. Pilgrim Village did not appear on this list. At the final fairness hearing, counsel for DuPont stated that DuPont agreed to accept all late or incomplete opt-out forms up to the date of the hearing, but expressly stated that DuPont would not accept any opt-out forms past that date, and in its Order granting final approval, the Court approved the list of opt-out class members, including those who had submitted untimely or incomplete forms as of the date of the final fairness hearing. See id., Docket No. 244, ¶ 12.

Following settlement approval, the Court asked the parties to provide a list of all cases pending in the MDL and to indicate which cases/claims were resolved by the class settlement. See id., Docket No. 245. Counsel for Pilgrim Village filed a list of clients who they contended had opted out of the settlement, including Pilgrim Village. The Court then asked counsel to clarify a number of discrepancies between the lists submitted by individual plaintiffs’ counsel and the opt-out list of record. Shortly thereafter, on November 20, 2013, counsel for Pilgrim Village submitted, for the first time, a signed opt-out form for Pilgrim Village. The instant motion followed.


Under Federal Rule of Civil Procedure 6(b), “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.” The Third Circuit Court of Appeals has “recognize[d] that deadlines are an integral component of effective consolidation and management of the modern mass tort class action, ” but has cautioned courts not to ignore equitable considerations in favor of “rigid and unquestioned adherence” to such deadlines. In re Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, 316 (3d Cir. 2001). Courts in the Third Circuit consider four factors in assessing the issue of excusable neglect:

1) the danger of prejudice to the nonmovant; 2) the length of the delay and its potential effect on judicial proceedings; 3) the reason for the delay, including whether it was within the reasonable control of the ...

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