Case Detail

FOIA Project Annotation: A federal court in California has ruled that Victor Thome has not shown that he is entitled to a temporary restraining order preventing the FDA from returning records seized as part of a completed investigation of dietary supplement manufacturer VMG, Global, Inc. to the company. Thome was part of a class action suit in state court against VMG. During discovery, VMG told Thome that it did not have relevant records requested because the FDA had seized them as part of an investigation. Thome then made a FOIA request to the FDA and requested a TRO when he learned the FDA was in the process of returning the documents to VMG's previous counsel. Thome argued that there was a danger that the evidence would be lost or destroyed if returned to VMG before his FOIA request was processed. Rejecting that claim, the court noted that "it is simply not reasonable for the Court to assume, without some basis in fact, that VMG, its directors, or its former counsel will destroy or otherwise dispose of evidence that they know may be relevant to ongoing civil proceedings. While it may be possible that VMG or [their former counsel] may destroy, lose, or dispose of evidence, Plaintiffs have not put forth facts or evidence demonstrating that such loss or destruction is likely to occur." The court's decision that Thome would not suffer irreparable harm if his TRO was not granted made it unnecessary for the court to address the issue of whether there was a likelihood that Thome would be successful on the merits. However, the court pointed out that the FDA argued that the records were not agency records because the agency did not have the right to use or dispose of them as it saw fit. The court observed that "while the Court cannot ascertain at this time whether the evidence and documents Plaintiffs seek are properly considered agency records, the FDA has raised colorable arguments that the evidence does not fall within the scope of FOIA and that Plaintiffs may not succeed on the merits of their claims."
Issues: Agency Record

FOIA Project Annotation: A federal court in California has ruled that Victor Thome does not have standing to sue the FDA for records concerning the manufacture of a dietary supplement because the request was made solely by his attorney, Thomas Feerick. The court noted that "the only person identified in the FOIA request was Feerick. The requests state that Feerick represents a class of plaintiffs and the request information will help support their case. . .Thome is not identified in any of the FOIA requests. Additionally, Feerick does not state in the coverletter or in any of the FOIA requests that he made the request on behalf of the class plaintiffs or Thome specifically. Thus, Feerick is the only person who has made a formal request within the meaning of the FOIA statute." The court also rejected Thome's attempt to amend his complaint to include Feerick. The court pointed out that "'a plaintiff may not amend the complaint to substitute a new plaintiff in order to cure a lack of jurisdiction, because plaintiff may not create jurisdiction by amendment when none exists.'. . .Thus. . . the court does not have subject matter jurisdiction to consider anything filed thereafter, including the amended complaint in which Feerick was added as a Plaintiff."
Issues: Litigation - Jurisdiction - Standing

Date Filed	Doc #	Docket Text
2011-02-14	1	COMPLAINT for Violation of the Freedom of Information Act; Injunctive Relief and Other Appropriate Relief (Summons Issued) against U.S. Food and Drug Administration, ( Filing fee $ 350, receipt number 54611009107). Filed byVictor Thome. (Attachments: # 1 Civil Cover Sheet) (bw, COURT STAFF) (Filed on 2/14/2011) (Entered: 02/15/2011)
2011-02-14	2	Summons Issued as to U.S. Food and Drug Administration, (bw, COURT STAFF) (Filed on 2/14/2011) (Entered: 02/15/2011)
2011-02-14	3	ADR SCHEDULING ORDER: Case Management Statement due by 5/3/2011. Case Management Conference set for 5/10/2011 02:00 PM in Courtroom 5, 4th Floor, San Jose. (Attachments: # 1 Standing Order for Civil Practice in Cases Assigned for All Purposes to Magistrate Judge Paul S. Grewal, # 2 U.S. Magistrate Judge Paul S. Grewal Settlement Conference Procedures, # 3 San Jose Division Judges Standing Orders, # 4 Standing Orders Judges for Judges of the Northern District of California)(bw, COURT STAFF) (Filed on 2/14/2011) (Entered: 02/15/2011)
2011-02-14		CASE DESIGNATED for Electronic Filing. (bw, COURT STAFF) (Filed on 2/14/2011) (Entered: 02/15/2011)
2011-03-03	4	Ex Parte Application for Temporary Restraining Order to Preserve the Status Quo Until the Preliminary Injunction Hearing Regarding an Injunction Preventing the Defendants from Releasing any Documents and/or other Evidence filed by Victor Thome. (Attachments: # 1 Points & Authorities, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 (Proposed) Order, # 6 Notice of Association of Counsel, # 7 Proof of Service)(Feerick, Thomas) (Filed on 3/3/2011) Modified on 3/3/2011 (bw, COURT STAFF). (Entered: 03/03/2011)
2011-03-03	5	Opposition to Plaintiff's Ex-Parte Application for Temporary Restraining order (re 4 filed by U.S. Food and Drug Administration. (Attachments: # 1 Declaration of Claire T. Cormier)(Cormier, Claire) (Filed on 3/3/2011) Modified on 3/4/2011 (bw, COURT STAFF). (Entered: 03/03/2011)
2011-03-03	6	CONSENT to Proceed Before a US Magistrate Judge by U.S. Food and Drug Administration. (Cormier, Claire) (Filed on 3/3/2011) Modified on 3/4/2011 (bw, COURT STAFF). (Entered: 03/03/2011)
2011-03-03	7	Declination to Proceed Before a U.S. Magistrate Judge and Request for Reassignment to a United States District Judge by Victor Thome. (Feerick, Thomas) (Filed on 3/3/2011) Modified on 3/4/2011 (bw, COURT STAFF). (Entered: 03/03/2011)
2011-03-03	8	CLERK'S NOTICE of Impending Reassignment to U.S. District Judge: 5/10/11 Case Management Conference Vacated. Clerk to reassign case. (ofr, COURT STAFF) (Filed on 3/3/2011) (Entered: 03/03/2011)
2011-03-03		***Deadlines terminated. 8 TERMINATING 5/10/11 CASE MANAGEMENT CONFERENCE. (ofr, COURT STAFF) (Filed on 3/3/2011) (Entered: 03/03/2011)
2011-03-04	9	ORDER REASSIGNING CASE. Case reassigned to Judge Lucy H. Koh for all further proceedings and Magistrate Judge Paul Singh Grewal for all discovery matters. Signed by The Executive Committee on 3/4/2011. (tsh, COURT STAFF) (Filed on 3/4/2011) (Entered: 03/04/2011)
2011-03-04	10	FIRST AMENDED COMPLAINT for Violation of Freedom of Information Act against U.S. Food and Drug Administration. Filed by Victor Thome. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Feerick, Thomas) (Filed on 3/4/2011) Modified on 4/26/2011 (cv, COURT STAFF). (Entered: 03/04/2011)
2011-03-04	11	summons has not been issued by the court clerk. (Feerick, Thomas) (Filed on 3/4/2011) Modified text on 4/26/2011, (to conform with document posted by counsel.) (cv, COURT STAFF). (Entered: 03/04/2011)
2011-03-09	12	ORDER DENYING 4 Ex Parte Application for Temporary Restraining Order. Case Management Statement due by 4/27/2011. Initial Case Management Conference set for 5/4/2011 02:00 PM in Courtroom 4, 5th Floor, San Jose. Signed by Judge Koh on 3/9/2011. (lhklc1, COURT STAFF) (Filed on 3/9/2011) (Entered: 03/09/2011)
2011-04-07	13	MOTION to Dismiss filed by U.S. Food and Drug Administration. Motion Hearing set for 6/23/2011 01:30 PM in Courtroom 4, 5th Floor, San Jose before Hon. Lucy H. Koh. (Attachments: # 1 Declaration of Frederick J. Sadler, # 2 Exhibit Exhibits A through G to Sadler Declaration)(Cormier, Claire) (Filed on 4/7/2011) (Entered: 04/07/2011)
2011-04-08	14	CLERKS NOTICE Continuing Motion Hearing, Set/Reset Deadlines as to 13 MOTION to Dismiss. Case Management Conference to follow motion on that date. Motion Hearing set for 6/30/2011 01:30 PM before Hon. Lucy H. Koh. (mpb, COURT STAFF) (Filed on 4/8/2011) (Entered: 04/08/2011)
2011-04-19	15	Renotice motion hearing re 13 MOTION to Dismiss filed byU.S. Food and Drug Administration. Motion Hearing set for 7/21/2011 01:30 PM in Courtroom 4, 5th Floor, San Jose before Hon. Lucy H. Koh. (Related document(s) 13 ) (Cormier, Claire) (Filed on 4/19/2011) (Entered: 04/19/2011)
2011-04-25	16	ORDER REASSIGNING CASE. Case reassigned to Judge Edward J. Davila for all further proceedings. Judge Lucy H. Koh no longer assigned to the case.Signed by The Executive Committee on 4/25/2011. (tsh, COURT STAFF) (Filed on 4/25/2011) (Entered: 04/25/2011)
2011-04-26		Pursuant to the Order Reassigning Case all hearings on motions and further deadlines terminated and must be renoticed in front of newly assigned Judge. (tsh, COURT STAFF) (Filed on 4/26/2011) (Entered: 04/26/2011)
2011-04-26	17	CONSENT to Proceed Before a US Magistrate Judge by U.S. Food and Drug Administration (Joint) .. (Cormier, Claire) (Filed on 4/26/2011) (Entered: 04/26/2011)
2011-05-10	18	ORDER REASSIGNING CASE TO MAGISTRATE JUDGE FOR ALL PURPOSES re 17 Consent to Proceed Before a US Magistrate Judge. Signed by Judge Edward J. Davila on 5/10/2011. (ecg, COURT STAFF) (Filed on 5/10/2011) (Entered: 05/10/2011)
2011-05-11		Pursuant to Signed Order of Reassignment ( 18 ). Case Reassigned to Magistrate Judge Paul Singh Grewal for all further proceedings. Judge Edward J. Davila no longer assigned to this case. (tsh, COURT STAFF) (Filed on 5/11/2011) (Entered: 05/11/2011)
2011-05-23	19	CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE: Case Management Conference set for 6/14/2011 at 10:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul S. Grewal. Case Management Statement due by 6/7/2011. (ofr, COURT STAFF) (Filed on 5/23/2011) (Entered: 05/23/2011)
2011-05-24	20	CLERK'S NOTICE RESETTING TIME ON CASE MANAGEMENT CONFERENCE: 6/14/2011 10:00 AM Case Management Conference reset to 2:00 PM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul S. Grewal. (ofr, COURT STAFF) (Filed on 5/24/2011) (Entered: 05/24/2011)
2011-05-26	21	Amended Notice of Motion to Dismiss re 13 filed by U.S. Food and Drug Administration. Motion Hearing set for 7/26/2011 10:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. (Cormier, Claire) (Filed on 5/26/2011) Text modified on 5/27/2011 (bw, COURT STAFF). (Entered: 05/26/2011)
2011-05-26	22	Request to Appear by Telephone for the Case Management Conference filed by Victor Thome. Motion Hearing set for 6/14/2011 10:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. (Feerick, Thomas) (Filed on 5/26/2011) Modified on 5/27/2011 (ofr, COURT STAFF). Modified on 5/27/2011 (ofr, COURT STAFF). (Entered: 05/26/2011)
2011-05-27		***Deadlines terminated. 22 MOTION to Appear by Telephone for the Case Management Conference filed by Victor Thome. (ofr, COURT STAFF) (Filed on 5/27/2011) (Entered: 05/27/2011)
2011-06-01	23	STIPULATION and [proposed] order continuing case management conference by U.S. Food and Drug Administration. (Cormier, Claire) (Filed on 6/1/2011) (Entered: 06/01/2011)
2011-06-02	24	DISREGARD. FILED IN ERROR. See Docket No. 25 (Entered: 06/02/2011)
2011-06-02	25	ORDER Granting 23 Request to Continue Case Management Conference. Signed by Judge Paul S. Grewal on June 2, 2011.(psglc2, COURT STAFF) (Filed on 6/2/2011) (Entered: 06/06/2011)
2011-07-05	26	Opposition to Defendant U.S. Food and Drug Administration's Motion to Dismiss and Request for Joinder Under F. R. C. P. Rule 21 re 13 filed by Victor Thome. (Attachments: # 1 Affidavit of Attorney Thomas F. Feerick, # 2 Exhibit-Attachment to Affidavit)(Feerick, Thomas) (Filed on 7/5/2011) Text modified on 7/6/2011 (bw, COURT STAFF). (Entered: 07/05/2011)
2011-07-11	27	REPLY (re 13 MOTION to Dismiss ) filed byU.S. Food and Drug Administration. (Cormier, Claire) (Filed on 7/11/2011) (Entered: 07/11/2011)
2011-07-12	28	MOTION to Appear by Telephone for Motion to Dismiss Hearing filed by Victor Thome. (Attachments: # 1 Affidavit Certificate of Service)(Feerick, Thomas) (Filed on 7/12/2011) (Entered: 07/12/2011)
2011-07-12	29	CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: 8/16/2011 Case Management Conference reset to 8/23/2011 at 2:00 PM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul S. Grewal. Joint Case Management Statement to be submitted no later than 8/16/2011. (ofr, COURT STAFF) (Filed on 7/12/2011) (Entered: 07/12/2011)
2011-07-19	30	Order by Magistrate Judge Paul Singh Grewal granting 28 Motion to Appear by Telephone.(psglc2, COURT STAFF) (Filed on 7/19/2011) (Entered: 07/19/2011)
2011-07-26	31	Minute Entry: Motion to Dismiss Hearing held on 7/26/2011 before Magistrate Judge Paul S. Grewal as to Docket 21 . The Court takes matter under submission; written order after hearing to be issued. (Date Filed: 7/26/2011). (Court Reporter: Irene Rodriguez.) (ofr, COURT STAFF) (Date Filed: 7/26/2011) (Entered: 07/26/2011)
2011-07-27	32	Order by Magistrate Judge Paul Singh Grewal granting 13 Motion to Dismiss.(psglc2, COURT STAFF) (Filed on 7/27/2011) (Entered: 07/27/2011)
2011-07-27	33	JUDGMENT. Signed by Judge Paul S. Grewal on July 27, 2011. (psglc2, COURT STAFF) (Filed on 7/27/2011) (Entered: 07/27/2011)
2011-07-27		***Deadlines terminated. 33 TERMINATING 8/23/2011 CASE MANAGEMENT CONFERENCE. (ofr, COURT STAFF) (Filed on 7/27/2011) (Entered: 07/27/2011)
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