19643. Misbranding of frozen strawberries. U. Si v. 400 Cases * * *. Motion to quash denied and exceptions to interrogatories overruled in part and granted in part. Motion for summary judgment granted. Decree of condemnation. (F. D. C. No. 25735. Sample Nos. 6506-K, 6533-K.) limber FILED: October 20, 1948, Western District of New York; amended libel filed on November 22, 1949. ALLEGED SHIPMENT: On or about September 8, 1948, by the Sunshine Packing Corp. of Pennsylvania, from North East, Pa. .PRODUCT: 400 cases, each containing 24 packages, of frozen strawberries at Rochester, N. Y. Examination showed that each package contained only 14 ounces of strawberries, whereas each package could hold 1 pound. XABEL, IN PART: , (Package) "Quick Frozen Sunshine Brand Sliced Straw- berries * * * Net Weight 14 Oz. * * * This One Pound Package Serves 4." .NATURE OF CHARGE: Misbranding, Section 403 (a), the label statement "This One Pound Package Serves 4" was false and misleading as applied to a package containing less than 1 pound j and, Section 403 (d), the container of the article was so filled as to be misleading since only 14 ounces of sliced strawberries with sugar were packed in the container and the container was designed to hold, and the firm packs, 16 ounces of sliced strawberries with sugar in the same size package. DISPOSITION : The Sunshine Packing Corp. of Pennsylvania appeared as claim- ant and filed an answer denying that the product was misbranded as alleged in the libel. Thereafter, an amended libel was filed, together with a set of written interrogatories to be answered by the claimant. A motion to quash the amended libel, together with exceptions to the interrogatories, was filed on behalf of the claimant. On December 23,1949, the court handed down the following opinion in denial of the claimant's motion to quash: KNIGHT, District Judge: "After the goods in question were libelled, Sun- shine Packing Corporation of Pennsylvania claimed ownership and was al- lowed to intervene and answer. It now moves for an order (1) dismissing and quashing the amended libel of information on grounds it was not filed pursuant to order of this court, that it is not timely, that it will prevent a fair and impartial trial of issues and defense, as it contains improperly joined charges under 21 tT. S. C. sees. 343[403] (a) and 343[403] (d), which should have been pleaded under separate causes of action; (2) directing that its charges be pleaded, if at all, as separate causes of action; (3) directing, in interests of justice, that action be severed and said causes of action under said sections be tried separately so that claimant will not be prejudiced and may have a fair and impartial trial of issues and defenses. "On the return day of said motion claimant did not appear. Its attorney and proctor has not filed any brief. "Both libels of information allege that Sunshine Packing Corporation of Pennsylvania shipped in interstate commerce from Pennsylvania to Rochester, N. Y., via shipper's truck on or about September 8,1948, 400 cases, more or less, each containing 24 packages of an article labeled in part: 'Quick Frozen Sun- shine Brand Sliced Strawberries * * * Net Weight 14 Oz. * * * This One Pound Package Serves 4.' The original libel alleges that said 'article was misbranded in interstate commerce, within the meaning of said Act (Federal Food, Drugs and Cosmetic Act), 21 U. S. C. 343[403] (d) in that its con- tainer is so filled as to be misleading, since two ounces additional sliced straw- berries could be packed in each container.' It does not specifically allege any violation of 21U. S. C. sec. 343[403] (a). "The amended libel contains these allegations: 3. That the aforesaid article was misbranded when introduced into and while in interstate commerce, within the meaning of said Act, 21 U. S. C. as follows: 343T403] (a) in that the label statement "This One Pound Package Serves 4" is false and misleading as applied to a package containing less than one pound; and 343[403] (d) in that its container is so filled as to be misleading since only 14 ounces of sliced strawberries with sugar is packed in the con- tainer and the container is designed to hold, and the firm packs, 16 ounces of sliced strawberries with sugar in the same size package. "Said section 343 [403] of 21 U. S. C. provides as follows: Sec. 343 [403]. Misbranded food A food shall be deemed to be misbranded False or misleading label (a) If its labeling is false or misleading in any particular * * * Misleading container (d) If its container is so made, formed, or filled as to be misleading. "Claimant's attorney and proctor Laurence E. Becker, in his affidavit veri- fied December 5, 1949. in support of motion urges that the amended libel was filed and served November 22, 1949, while ease was awaiting trial and is un- timely; that the original libel charged a violation of only 21 U. S. C. 343 [403] (d) while the amended libel charges also a violation of 21 U. S. C. 343 [403] (a) ; that these two charges are inconsistent and cannot be tried together without prejudicing claimant and preventing a fair and impartial trial. "Both libels allege that said article is liable to seizure and condemnation pursuant to 21 U. S. C. 334 and pray 'that process in due form of law according to the course of this Court in cases of admiralty jurisdiction issue against the aforesaid article * * * that this Court decree (its) condemnation and grant libellant the costs of this proceeding against the claimant * * *.' "The pertinent provisions of 21U. S. C. 334 read thus: (a) Any article of food * * * that is * * * misbranded when introduced or while in interstate commerce * * * shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned * * * (b) The article shall be liable to seizure by process-pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty * * *. "Admiralty Rule 21 states the requisites of libel of information. Admiralty Rule 23 provides for amendments and they are freely permitted. The S. C. Neo Hellis (C. C. A. 2d), 116 F. 2d 803, 805. Rules of pleading in admiralty do not require all the technical precision required at common law. W. S. Keyser & Co. v. Jurvelius (C. C. A. 5th), 122 F. 218, 222 and are treated with liberality. The Roslyn (C. C. A. 2d), 93 F. 2d 278, 280. "Paragraph 3 of the amended libel charges that the 'article was misbranded when introduced into and while in interstate commerce.' 21 U. S. C. 343 [403] defines misbranded food' and the amended libel now relies on 2 subdivisions thereof. It is not denied in claimant's answer or in the moving affidavit of claimant's attorney and proctor that the packages were labeled in part as alleged. Claimant in his answer to original libel (Par. Ill) 'alleges that the packages * * * are not misleading, and are not so filled or packed as to be misleading, and that the above described articles were not, when introduced into interstate commerce, or at any time thereafter, misbranded within the meaning of 21 U. S. C. 343 [403] (d).' "The amended libel pleads the ultimate fact of misbranded food' as defined in 2 subdivisions of said section 343. This is sufficient. Colonial Sand & Stone Co. v. Muscelli (C. C. A. 2d), 151F. 2d 884, 885. "In James Richardson & Sons v. Conners Marine Co. (C. C. A. 2d), 141 F. 2d 226, 228, the Court said : Since it is now recognized that repetitive verbosity does not make for clarity, refinements of separate statement are not now in favor * * *; and though a formal requirement of separation is still retained in the admiralty rules, yet it should be construed in a practical way. ""It is not apparent that claimant will be prejudiced in'proceeding to trial under the amended libel of information and therefore claimant's motion is denied in all respects." With respect to the claimant's exceptions to the interrogatories, the following opinion of the court was handed down on January 18,1950: KNIGHT, District Judge: "The facts of this case appear in the opinion of this court dated December 23, 1949. Libellant now propounds 27 interroga- tories under Rule 33 of Rules of Civil Procedure. Claimant Sunshine Pack- ing Corporation of Pennsylvania excepts to all of them 'generally, on the ground that they are not addressed to any officer of the claimant, a private corporation, competent to testify in its behalf, as required by Rule 33 * * *.' It specifically objects on other grounds to each interrogatory except those numbered 6, 7, and 8. The interrogatories are thus addressed: 'The libellant herein, by their attorneys, submit the following written interrogatories under Rule 33 of the Rules of Civil Procedure for the United States District Courts:' They were served upon the attorneys for claimant. Rule 33, effective March, 1948, provides in part: Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or ' private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. Under Federal Rule 33, a party may without leave ;of court serve inter- rogatories to be; answered by an officer of a public or private corporation, partnership or association: which is an adverse party. .The party serving the interrogatories, may designate therein a particular officer whom he desires to answer the interrogatories or may leave it with the adverse party to select an Officer to make the answers. - - "See also: Dipson Theatres, Inc. v. Buffalo Theatres, Inc. et ai.,8 F, R. D. 86 (this court) ; United States v. Columbia Steel Co., 7 F. R. D-183; Kennedy v. Mississippi Valley Barge Line Co., 7 F' R« D- 78, cited by claimant does not pass on the question here, and Holler v. General Motors Corp., 3 F. R. D. 296,. is a holding against the claimant, and Hickman v. Taylor, 329 U. S. 495. "The exception to the interrogatories 'generally, on the ground that they are not addressed to any officer of the claimant, a private corporation, competent, to testify in its behalf' must therefore be overruled. "The specific exceptions are comprised in four categories. "(1) Claimant excepts to interrogatories 1, 2, 3, 4, and 5 on the ground they relate to matters irrelevant to issues of the case and not properly the subject of interrogatories and oh the further ground they require compilation of data and information not readily, known to claimant and 'requiring burden- some compilation^ of voluminous records.' "These five interrogatories read thus: 1. Give the date on which the Sunshine Packing Corporation * * * first packed 14 oz; of frozen sliced strawberries with sugar, in the type of l , package involved in this proceeding. 2. On what date and to whom was the first interstate shipment made of the pack described in Interrogatory number 1 3. Excluding the first shipment, list all subsequent interstate shipments- of the type of pack described in Interrogatory number 1, giving names,, addresses, and dates of shipment. 4. What variety of strawberries were used in each of the shipments listedby.you in answer to Interrogatories numbered 2 and 3 5. In what locality or area of production were the strawberries listed by you in answer to Interrogatory number 4 grown "Claimant's attorney, in his supporting affidavit alleges: The present case relates to shipment in interstate commerce of specific- ity cases of frozen sliced strawberries to a consignee in Rochester, New York. Interrogatories 1 and 2 seek information as to other ship- ments. Interrogatories 3, 4, and 5 also seek information as to shipments- other than the shipment in suit. "Such information is irrelevant and 'only matters that are relevant to the- particular case can properly be the subject of interrogatories.' Coca Cola- Co. v. Dixi-Cola Laboratories (D. C. D. Md.), 30 F. Supp. 275, 278. See also' Dixon v. Phifer (D. C. W. D. S. Ca.), 30 F. Supp. 627, 628; Kingsway Press v. Farrell Pub. Corp. (D. C. S. D. N. Y.), 30 F. Supp. 775, 776; Gutowitz v. Penn- sylvania R. Co. (D. C. E. D. Pa.), 7 F. R. D. 144,145. "Rule 33 as amended provides: 'Interrogatories may relate to any matters which can be inquired into under Rule 26 (b) * * *.' The latter provides: 'Unless otherwise ordered by the court as provided by Rule 30 (b) or (d),the- deponent may be examined regarding any matter, not privileged, which is rel- evant to the subject matter involved in the pending action. .** . *.'¦ "Interrogatories land 2 are allowed. "Interrogatory 3; should be limited to an answer as to the approximate- amount of all interstate shipments of the type of pack described in Interroga- tory 1. "Interrogatories 4 and 5 are disallowed. "Interrogatories 6, 7, and 8 are'not disputed. "(2) Claimant excepts to interrogatories 9, 10, 11, 12, 13, 14, and 15 on' the ground they relate to matters not within or relevant to the issues and to- numbers 14 and 15 on further ground they call for expressions of opinion and; conclusions by claimant. Interrogatory 9 seeks information as to the ratio of sliced strawberries to sugar * * *. Since the charge is "slack fill," there is no possible bearing of such information upon the issues involved. In like manner, interroga- tories 10,11,12, and 13 seek information as to prices of strawberries, sugar, and of the selling price per pound of the goods under seizure and of sixteen ounce size packages of the same merchandise, to a named company. Cer- tainly none of these matters have any bearing or relevancy upon the issues * * *. The same may be said for interrogatories 14 and 15, relating to claimant's "system of coding" and "the meaning and significance" of specified code numbers. "Interrogatories 9,12, and 15 are allowed. "Interrogatories 10, 11, 13, 14 are disallowed. "(3) Claimant excepts to interrogatories 16, 17, 18, 19, 20, 21, 22, and 23 on 5 ground they relate to matters not relevant and 'seek expressions of opinion- d conclusions of third parties' and of the claimant and further that they iquire undue and burdensome research and compilation.' "These eight interrogatories read thus: 16. Have you ever conducted a survey, or other determination to ascer- tain the consumer reaction to the fill of container of the type of goods under seizure 17. If the answer to Interrogatory number 16 is yes, state the number of persons interviewed. 18. If the answer to Interrogatory number 16 is yes, give the names and addresses of the persons who conducted such survey, study or other determinations. 19. If the answer to Interrogatory number 16 is yes, give the names and addresses of each person interviewed. 20. If the answer to Interrogatory number 16 is yes, state in detail the questions asked of such persons. 21. If the answer to Interrogatory number 16 is yes, state in detail the- exact reply made by each person interviewed or attach a copy of the replies made by each person interviewed. 22. Are you now conducting a survey or study or other determinations to ascertain the consumer reactions to the fill of container of the type of goods under seizure 23. If the answer to Interrogatory number 22 is yes, state in detail— (a) The number of persons interviewed to date. (b) The names and addresses of all such persons interviewed to date. (c) The questions asked of such persons. (d) The replies made by each person interviewed or attach copies of" such replies. (e) The names and addresses of the persons who conducted or are con- ducting such survey, study or other determination. "Since the amended libel of information charges Misbranding of food, and does not involve 'consumer reactions,' these three interrogatories Nos. 21, 22, and 23 are disallowed. Interrogatories Nos. 16, 17, 18,19, and 20 are? allowed. "(4) Claimant excepts to interrogatories 24, 25, 26, and 27 on the ground they relate to matters not relevant and further 'require expressions of opinion and conclusions by the claimant.' "These four interrogatories read thus: 24. Have you ever packed 16 ounces of frozen sliced strawberries with sugar of the type under seizure in the type of package under seizure 25. If the answer to Interrogatory number 24 is yes, explain in detail your reason for changing to a 14 ounce pack using the same type of con- tainer in which you previously packed 16 ounces of strawberries. 26. Is it your contention that under good commercial practice 14 ounces of frozen sliced strawberries with sugar of the same composition as the goods under seizure, is the maximum quantity of product that can be packed into the container which is the subject of this action 27. Explain in detail your answer to Interrogatory number 26. "These four interrogatories relate to packing procedure of claimant, which is charged with shipping a misbranded article of food in interstate commerce. In American S. C. Co. v. Buckeye S. C. Co., 1 F. R. D. 773, this court said: 'It is well established that any interrogatory is proper which would be proper if asked the witness on the stand.' p. 775. These interrogatories are proper and give claimant an opportunity to explain and defend its packing procedure." In accordance with the opinion of January 18,1950, answers were submitted to the interrogatories. Thereafter, the Government filed a motion for summary judgment, and on October 28, 1950, the court rendered the following decision: BTTRKE, District Judge: "Motion for summary judgment. "This case arises under the Federal Food, Drug, and Cosmetic Act, 21 U. S. C. A. 301 et seq. The amended libel charges that the claimant, Sunshine Packing Corporation, shipped in interstate commerce frozen strawberries in packages which were labeled in part Quick Frozen Sunshine Brand Sliced Strawberries * * * Net Weight 14 Oz. * * * This One Pound Package Serves 4 and that the product was misbranded within the meaning of Sec. 343 [403] (a) because the label statement 'This One Pound Package Serves 4' is false and misleading as applied to a package containing less than one pound. "It also charges a violation of Section 343 [403] (d) because only 14 ounces are packed in a container designed to hold 16 ounces. This latter charge is not involved on this motion for summary judgment since the libelant claims, and I agree, that a determination of a violation on the first charge would require a decree of condemnation. "The claimant has answered. It has not denied the shipment and labeling as alleged. It appears by the package handed up to the court on the argument by the claimant that the fruit of the label bears the marking 'Net Weight 14 Oz.' On the label on the side of the package appears the notation 'This One Pound Package Serves 4.' The claimant has filed in opposition to the motion the affidavit of its attorney which, so far as related to the matters involved on this motion, contains his conclusion that it is clear that there is no possi- bility of any one being misled by the label. "It seems plain to me that the label is ambiguous and liable to mislead a purchaser. A jury could not find otherwise on the evidence, viz., the labeled package itself. If a purchaser read only the fruit of the label, he would not be misled. If he read only the side of the label, he would certainly be misled. If he read both, he could only be confused. That to me means that the label may mislead or deceive a purchaser and is false and misleading within the language of Section 343 [403] (a). United States vs. 95 Barrels of Vinegar, 265 U. S. 438, 442, 443. There is no genuine issue for trial. "Motion granted." In accordance with the decision of October 28, 1950, judgment of con- demnation was entered on November 7,1950. Thereafter, upon the basis of a petition filed by the claimant, the court entered an order on December 21,1950, directing that the product be released under bond to be brought into compliance with the law, under the supervision of the Federal Security Agency. Re- packaging of the product to comply with the terms of the decree was completed on or about January 8,1952.