THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF JEFFERSON DONALD R. EARL ) Case No. 07-2-00250-1 (Plaintiff) ) ) Judge: The Honorable Craddock Verser ) v. ) ) Menu Foods Income Fund, ) PLAINTIFF’S CR 60(b) MOTION TO The Kroger Co. ) VACATE PRODUCT RETENTION (Defendants) ) ORDER ENTERED ON 2/15/08 PLAINTIFF’S CR 60 MOTION 1. INTRODUCTION The Plaintiff, Donald R. Earl, respectfully submits this motion to vacate the order entered on February 15, 2008, which in part allowed Menu Foods to destroy evidence material to the Plaintiff’s action. The Plaintiff brings this motion pursuant to provisions of CR 60(b). 2. BACKGROUND On February 15, 2008, this Court granted Menu Foods permission to destroy a massive body of evidence material to the Plaintiff’s case. The motion filed by Menu Foods consisted of a sheaf of documents totaling in excess of 500 pages. The Plaintiff timely filed a LCR 7.5 motion for an automatic one week continuance in order to prepare a written response to this massive document. Menu Foods represented to this Court that the situation constituted an emergency, and that any delay would cause it to incur expenses on the order of $3,000.00 per day, claiming a state of prejudice would exist if the Plaintiff’s request for needed time to prepare a response were granted. On the basis of Menu Foods’ representations, this Court ordered the matter to proceed, to the surprise and dismay of the Plaintiff. A document subsequently filed in the Federal case (Exhibit A) shows that at the very time Menu Foods made these representations to the Court as to a state of prejudice in continuing to store the evidence in question, it was in fact engaged in negotiations with plaintiffs in the Federal action to amend the conditions of that court’s December 18, 2007 protection order, and voluntarily held this evidence for two months beyond the February 15, 2008 hearing. This document demonstrates Menu Foods’ representations to the Court were knowingly false, that no state of emergency existed, and that it would not have been prejudiced by the requested one week continuance. In fact, the attorney representing Menu Foods in those negotiations, Amy W. Schulman, appeared for Menu Foods at the February 15, 2008 hearing. Her signature appears on the motion filed in Federal court. Furthermore, the MDL order Menu Foods submitted to this Court for approval, was obtained through the making of knowingly false misrepresentations to that court. In its official financial disclosures filed with the Toronto Stock Exchange, a regulatory body with authority comparable to the US Securities and Exchange Commission, Menu Foods discloses the existence of present and potential civil and criminal investigations. (Exhibit B) In obtaining the protection order in Federal District Court, Menu Foods denied the existence of parties with an interest in obtaining discovery on the body of evidence known as “unorganized inventory”. (Exhibit C) The Plaintiff filed a motion for discretionary review. The higher courts have so far declined jurisdiction of the matter, denying the motion. Additional litigation is contemplated at that level. 3. LEGAL AUTHORITY Under the provisions of CR 60(b), the court may relieve a party from the operation of judgments or orders for: “(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order… (3) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b); (4) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (5) The judgment is void;” 4. ARGUMENT a) Misrepresentations Resulted in Denial of Plaintiff’s LCR 7.5 Filing The Plaintiff reasonably believed his LCR 7.5 motion would be granted, which under the rule describes the continuance as “automatic”, and that he would be allowed the additional week needed to prepare a brief in order to adequately apprise the court of the issues involved. At the hearing, the Plaintiff argued Menu Foods contention a state of prejudice existed, was a manufactured excuse being used solely as a basis of railroading its motion through by depriving the Plaintiff of the time needed to prepare an adequate response to the motion. This Court overruled the Plaintiff’s objections, basing the decision on the good faith belief that Menu Foods was in fact incurring inordinate expenses to store evidence, and the only thing holding it up was the Plaintiff’s objection to it being destroyed prior to his obtaining a modest amount of the evidence on discovery. At page 2 of Exhibit A, it is stated that: “For over one year, Defendants have stored and maintained over 3.4 million cases of recalled product in their warehouses. On December 18, 2007, this Court agreed with Defendants and their expert that the continued storage of such enormous quantities of product is unnecessary, and concluded that Defendants may retain only 500 units (which are cans, pouches or bags) of the organized recalled pet food for each date of manufacture of a particular recipe of pet food (i.e., "SKU Date"). During the three months since the December 18 Order (Doc. No. 106), Dr. McCabe has developed detailed retrieval plans for each Defendant, instructing them on the specific method of retrieval of the 500 units for each SKU Date based on statistically sound retrieval methods.” On the last page, the certificate of service shows the document was filed on April 10, 2008, nearly 2 months after Menu Foods represented to this Court the Plaintiff would cause it to incur expenses of $3,000.00 per day if the motion were not decided immediately. This document shows irrefutably that Menu Foods representations to this court it would be prejudiced by a one week continuance were knowingly false. The order should be vacated pursuant to CR 60(b) (1) & (4). b) Misrepresentations Made to Obtain Federal District Court Order In its Unopposed Motion to the Federal Court in December 2007, Menu Foods represented to that court: “This Unorganized Inventory is of no discernable use to any party interested in future testing of the product.” In Menu Foods official financial report released on May 30, 2007, Menu Foods states: “Lawsuits have been initiated against the Fund and certain of its subsidiaries in the United States and Canada, which seek to recover damages on behalf of the named plaintiffs and a purported class of affected pet owners. Furthermore, the U.S. Food and Drug Administration is conducting an investigation of the situation. The offices of two United States' Attorneys have informed Menu that it is the target of criminal investigations for possible violations of the U.S. federal Food, Drug and Cosmetic Act. It is possible that additional actions or investigations may arise in the future.” These documents show Menu Foods obtained the Federal order it presented to this Court, in part, through knowing misrepresentations to that court as to the existence of parties with a vested interested in testing samples of the body of evidence known as unorganized inventory. c) Federal Order is Void The Federal District Court has neither personal jurisdiction over the Plaintiff, nor subject matter jurisdiction over the disposition of discovery material relevant to the Plaintiff’s action. Furthermore, that court does not have subject matter jurisdiction over the disposition of evidence relevant to other pending or future civil actions or criminal investigations. To the extent that order affects discovery in unrelated cases, the order is void as a matter of law. Relevant case law on void judgments is as follows: "A judgment is void if the court lacks jurisdiction of the parties or of the subject matter, or lacks the inherent power to make or enter the particular order involved." Dike v. Dike, 75 Wn 2d 1 448 P.2d 490 (1968)” "If a judgment is void for want of jurisdiction, no showing of a meritorious defense is required to vacate the judgment." Mid-City Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wn App 480 486, 674 P.2d 1271 (1984)” "Jurisdiction over the subject matter of an action is an elementary prerequisite to the exercise of judicial power." In re Buehl, 87 Wn 2d 649 655, 555 P.2d 1334 (1976)” The order entered on February 15, 2008 binds the Plaintiff to the order entered in Federal District Court, which is void on its face. The order is void and should be vacated subject to CR 60(b)(5). d) Newly Discovered Evidence In test results released on July 15, 2008, a composite of three unopened cans of cat food manufactured by Menu Foods tested positive for cyanuric acid (Exhibit D). These products were manufactured in May, June and September of 2006. The two samples of pet food testing positive for contamination of which the Plaintiff has in his possession were manufactured in April and September of 2006. The recent test results add to the currently limited body of evidence that the products manufactured by Menu Foods were adulterated months prior to the official recall period. This new evidence supports the Plaintiff’s argument he should be allowed to acquire a statistical universe of samples in order to demonstrate at trial the breadth and scope of adulteration of Menu Foods products. Pursuant to CR 60(b)(3), the February 15, 2008 order should be vacated. 5. RELIEF SOUGHT Concurrent with this Motion, the Plaintiff is filing a motion to obtain discovery on the body of evidence known as unorganized inventory. That motion is in essence the response the Plaintiff would have filed had he been permitted time to file a response in February. The Plaintiff respectfully requests the February 15, 2008 order permitting destruction of evidence material to this action be vacated and that the Plaintiff be allowed to conduct limited discovery on the body of evidence known as unorganized inventory. Respectfully submitted on August 11, 2008 by: _____________________________ Donald R. Earl (pro se)